Madison's Music (34 page)

AMENDMENT V

           
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land and naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

AMENDMENT VI

           
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

AMENDMENT VII

           
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court in the United States, than according to the rules of the common law.

AMENDMENT VIII

           
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

4. The First Amendment as a Narrative of Democracy

1
. The phrase “city on a hill” is derived from Massachusetts Bay Colony governor John Winthrop's 1630 sermon “A Model of Christian Charity,” delivered aboard the
Arabella
immediately before disembarking in the New World. In describing the ideal commonwealth that he hoped to found as a “city on a hill,”
Winthrop was echoing language in the parable of salt and light from the Sermon on the Mount, Matthew 5:14.

2
. The forty-two rights-bearing antecedents to the Bill of Rights, were:

           
(1) four British documents: the Magna Carta (1215), the English Petition of Rights (1628), Cromwell's Agreement of the People (1628), and the English Bill of Rights (1689);

           
(2) three detailed colonial charters: the Massachusetts Body of Liberties (1641), the Pennsylvania Charter of Government (1682), and the New York Charter of Liberties and Privileges (1683), together with less detailed colonial charters for Maryland (1639), Rhode Island (1663), Carolina (1669—drafted by John Locke, no less), New Jersey (1677), and Pennsylvania (1701);

           
(3) nineteen Revolutionary-era Constitutions and Declarations: Virginia (1765), Massachusetts (1772), the First Continental Congress (1774), the Address to the Inhabitants of Quebec (1774), the Declaration of Independence (1776), Virginia (1776), Thomas Jefferson's Draft Virginia Constitution (1776), New Jersey (1776), Pennsylvania (1776), North Carolina (1776), Connecticut (1776), Delaware (1776), Maryland (1776), Georgia (1777), New York (1777), Vermont (1777), South Carolina (1778), Massachusetts (1780), and New Hampshire (1783); and

           
(4) eleven documents dating from the Founders' era: the Northwest Ordinance (1787), the United States Constitution (1787), the French Declaration of the Rights of Man (1789), six documents prepared during the ratification debate proposing amendments to the United States Constitution submitted by Massachusetts, South Carolina, New Hampshire, Virginia (North Carolina submitted a verbatim copy of Virginia's proposed amendments), and New York, and three minority reports seeking amendments from Delaware, Pennsylvania, and Maryland.

3
. Madison initially resisted listing our rights in a single poetic document, preferring to intersperse them throughout the constitutional text. It was Roger Sherman who kept insisting on a single, integrated Bill of Rights. I describe the textual evolution of the Bill of Rights in Chapter 10.

4
. I discuss the fate of Madison's conscience clause in Chapter 10.

5
.
United States v. Seeger
, 380 U.S. 163 (1965);
Welsh v. United States
, 398 U.S. 333 (1970).

6
.
Buckley v. Valeo
, 424 U.S. 1 (1976), invalidating limits on campaign spending and forbidding efforts to limit campaign spending in an effort to equalize political power.

7
.
Arizona Free Enterprise Club v. Bennett
, 131 S. Ct. 2806 (2011), invalidating Arizona matching-funds campaign subsidy plan.

8
.
Citizens United v. FEC
, 558 U.S. 310 (2010), invalidating a ban on corporate campaign spending.

9
.
California Democratic Party v. Jones
, 530 U.S. 567 (2000), invalidating California's “blanket primary.”

10
.
Shaw v. Reno
, 509 U.S. 630 (1993), invalidating legislative lines designed to benefit a racial minority.

11
.
Shelby County v. Holder
, 133 S. Ct. 2612 (2013), invalidating pre-clearance provisions requiring advance certification by the Department of Justice that a proposed change in a covered state's election procedures would not adversely affect black voters.

12
.
Crawford v. Marion County
, 553 U.S. 181 (2008), upholding requirement of voter ID.

13
.
Vieth v. Jubelirer
, 541 U.S. 267 (2004), upholding Republican gerrymander of Pennsylvania.

14
.
LULAC v. Perry
, 548 U.S. 399 (2006), upholding Republican gerrymander of Texas.

15
. See Curtis Gans,
Voter Turnout in the United States, 1788–2009
(Washington, DC: CQ Press, 2010).

16
.
Bush v. Gore
, 531 U.S. 98 (2000), terminating Florida recount and ensuring election of George W. Bush.

17
. In
McCutcheon v. Federal Election Commission
, 134 S. Ct. 1434 (2014), the justices debated the Supreme Court's responsibility for the quality of the democracy their decisions have built. Chief Justice Roberts, writing for the Court's Republican majority, argued that the quality of the resulting democracy was not the Court's problem. Justice Breyer, writing for the four Democratic dissenters, argued that ensuring the quality of the democracy is an important aspect of the Court's work.

18
. The Third Amendment seeks to protect robust democracy against suffocation by military occupation, as opposed to armed overthrow. Fortunately, we have had no occasion to invoke it.

AMENDMENT III

           
No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

19
. The body of the 1787 Constitution sought to minimize the danger of armed subversion by limiting military appropriations to two years, forbidding military officers from serving in the government, appointing a civilian, the president, as commander in chief of the armed forces, and eliminating the executive's unilateral power to declare war.

20
.
District of Columbia v. Heller
, 554 U.S. 570 (2008).

21
.
Mapp v. Ohio
, 367 U.S. 643 (1961).

22
.
Miranda v. Arizona
, 384 U.S. 436 (1966).

23
.
In re Winship
, 397 U.S. 358 (1970);
Gideon v. Wainwright
, 372 U.S. 335 (1963).

24
. The nineteenth-century Supreme Court took a more holistic view of the criminal procedure amendments, e.g., in
Boyd v. United States
, 116 U.S. 616 (1886). Alas,
Boyd
has been abandoned by the modern Court.
Fisher v. United States
, 425 U.S. 391 (1976).

25
. The history of “equity of the statute” is recounted in James M. Landis, “Statutes and the Sources of the Law,”
Harvard Legal Essays
(1934); Ivor Jennings,
“Courts and Administrative Law: The Experience of English Housing Legislation,”
Harvard Law Review
49 (1936): 426. For a more skeptical modern view, see John F. Manning, “Textualism and the Equity of the Statute,”
Columbia Law Review
101, no. 1 (2001): 1.

26
.
NAACP v. Alabama
, 357 U.S. 449 (1958).

27
.
Mapp v. Ohio
, 367 U.S. 643 (1961);
Miranda v. Arizona
, 384 U.S. 436 (1966).

28
.
In re Winship
, 397 U.S. 358 (1970).

29
.
Gideon v. Wainwright
, 372 U.S. 335 (1963).

30
.
United States v. Seeger
, 380 U.S. 163 (1965);
Welsh v. United States
, 398 U.S. 333 (1970).

5. Madison's Music Restored

1
.
Baker v. Carr
, 369 U.S. 186 (1962).

2
.
Baker
, 369 U.S. at 266–330, Frankfurter, J., dissenting. See also
Colegrove v. Green
, 328 U.S. 549 (1946).

3
. Article IV, section 4 provides: “The United States shall guaranty to every state in this Union a Republican Form of Government.”

4
. The Equal Protection Clause of the Fourteenth Amendment provides: “No state . . . shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

5
.
Baker v. Carr
, 369 U.S. at 368, Harlan, J., dissenting.

6
. The Supreme Court ruled in 1844 that it lacked power under the Republican Form of Government Clause to decide which of two competing factions constituted the legitimate republican government of Rhode Island. Ever since, the Court has treated the clause as a judicial dead letter.

7
. The origins of the Twelfth Amendment are discussed in Chapter 10.

8
. See
Minor v. Happersett
, 88 U.S. 162 (1874), denying the vote to women;
Giles v. Harris
, 189 U.S. 475 (1903) (Holmes, J.), denying the vote to blacks.

9
.
Ex parte Yarbrough
, 110 U.S. 651 (1884), conspiring to use force to prevent blacks from voting punishable as a federal crime;
Guinn v. United States
, 238 U.S. 347 (1915), invalidating racially discriminatory literacy tests;
Nixon v. Herndon
, 273 U.S. 536 (1927), striking down a Texas statute forbidding blacks from voting in primary elections.

10
.
Carrington v. Rash
, 380 U.S. 89 (1965).

11
.
Harper v. Board of Elections
, 383 U.S. 663 (1966).

12
.
Williams v. Rhodes
, 393 U.S. 23 (1968).

13
.
Kramer v. Union Free School District
, 395 U.S. 621 (1969).

14
.
Dunn v. Blumstein
, 405 U.S. 330 (1972).

15
.
Lassiter v. Northampton Bd. of Elections
, 360 U.S. 45, 51–53 (1959).

16
.
Richardson v. Ramirez
, 418 U.S. 24 (1974).

17
. A third area where Justice Brennan's equality-based approach fell short of protecting the franchise was in so-called special-purpose elections, which often limit the franchise to persons directly affected by the election.
Salyer Land Company v. Tulare Lake Basin Water Storage District
, 410 U.S. 719 (1973), limiting
water allocation votes to landowners, allocating vote by acreage;
Ball v. James
, 451 U.S. 335 (1981), limiting vote for directors of state water conservation district to local landowners. But see
Hill v. Stone
, 421 U.S. 289 (1975), striking down property ownership requirement in city bond elections.

18
.
Gomillion v. Lightfoot
, 364 U.S. 339 (1960).

19
.
Lane v. Wilson
, 307 U.S. 268 (1939).

20
.
Washington v. Davis
, 426 U.S. 229 (1976).

21
.
City of Mobile v. Bolden
, 446 U.S. 55 (1980).

22
. After the Voting Rights Act of 1982 forbade election regulations with the “effect” of denying blacks a fair chance to elect candidates of their choice, and after the Supreme Court ruled that the Voting Rights Act applied to judicial elections, New Orleans was finally divided into two districts. Justice Bernette J. Johnson was elected from the new district in 1994 and sits today as Louisiana's first black chief justice.

23
.
Hunter v. Underwood
, 471 U.S. 222 (1985).

24
.
Johnson v. Bush
, 214 F. Supp.2d 1333 (S.D. Fla. 2002), granting summary judgment for Florida on issue of improper purpose.

25
.
Johnson v. Governor
, 377 F.3d 1163 (11th Cir. 2004), reversing grant of summary judgment, remanding for further fact-finding.