Madison's Music (5 page)

Once a Fourth Amendment investigation has identified and placed a suspected wrongdoer under arrest, Madison's poem moves logically to the formal charging and interrogation phases governed by the Fifth Amendment, which opens by empowering a group of ordinary citizens sitting as a grand jury to decide whether enough evidence of guilt exists to justify a formal accusation (indictment). Madison's Fifth Amendment then turns logically to custodial interrogation, limiting the power of the police to force a defendant to incriminate himself. As with the Fourth Amendment's exclusionary rule, the modern Supreme Court forbids the introduction at trial of involuntary custodial statements. Of course, statements given under torture are barred. But so are custodial statements taken without informing the accused of the right to remain silent and the right to a free lawyer. That's where so-called Miranda warnings come from.
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The Fifth Amendment closes with a prohibition on the
“deprivation of life, liberty, or property without due process of law,” and a ban on “taking” private property for public use without just compensation. The Due Process and Takings clauses are placed between the Fifth and Sixth Amendments to keep the police, once they get their hands on the person they believe to be guilty, from being tempted to impose summary punishment without waiting for the adjudicatory formalities described in the Sixth and Seventh Amendments. As such, they are perfectly positioned as the crucial textual bridge to the Sixth Amendment from the Fourth and Fifth.

Once an accused has been properly investigated, arrested, charged, and interrogated under the Fourth and Fifth Amendments, Madison's poem moves logically to the criminal adjudication phase in the Sixth Amendment, which ensures fair notice of criminal charges, the right of a criminal defendant to confront and cross-examine hostile witnesses, the right to summon friendly witnesses, the right to counsel, and the right to a public jury trial in the place where the alleged crime took place. As with the Fourth and Fifth Amendment exclusionary rules, the modern Supreme Court has added nontextual rights to the Sixth Amendment adjudication process, finding an implied requirement that a criminal jury must find guilt beyond a reasonable doubt as to each element of a criminal offense, and that the government provide free counsel in cases threatening loss of liberty.
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If a Sixth Amendment criminal jury trial (or a Seventh Amendment jury trial in a noncriminal setting) results in a guilty verdict, the Eighth Amendment's ban on cruel and unusual punishment or excessive fines limits the severity of punishment. No excessive bail at the beginning of the process, for such unfair incarceration is itself a punishment without trial. No death penalty for offenses not resulting in death. No death penalty for juvenile offenders. No death penalty for mentally deficient defendants. Perhaps no death penalty at all. No jail sentence that is grossly disproportionate to the gravity of the crime. No massive punitive damage awards in civil cases that bear little relationship to the actual damages caused by a defendant's unlawful behavior.

As with the careful order of democracy-enhancing ideas in the First Amendment and the military-curbing ideas in the Second and Third Amendments, no other similarly organized catalog of risks and safeguards associated with the civilian law enforcement process exists in our rights-bearing heritage. Yet I know of no modern case that asks why the criminal procedure amendments are ordered as they are or seeks to construe the criminal procedure amendments as a structural whole.
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To the contrary, since the 1980s, the Court's characteristic approach to criminal procedure is to view each clause of each amendment in splendid isolation, leaving white spaces between them that become loopholes for law enforcement abuse. For example, the widespread use of undercover agents to infiltrate Muslim institutions in the United States is not usually deemed a search, so it escapes the Fourth Amendment. Nor is it deemed custodial interrogation, so it escapes the Fifth Amendment, leaving police free to abuse the technique with no judicial oversight. Similarly, massive data-gathering programs carried out in secret are defended as constitutional because they do not fall within a narrow interpretation of
search
and
seizure
or because we've watered down the warrant clause to virtually nothing.

Madison would be appalled.

A MADISONIAN READING LESSON: RECOVERING THE POETRY IN AMENDMENTS IX AND X

Madison saved the best for last. The key to reading the Bill of Rights as a poem is found in the two closing amendments. Madison understood that without careful instructions about how to read the text, the Bill of Rights risked being mired in semantic chaos. As usual, he was right.

James Madison was a consummate lawyer. He knew that words are slippery things. He knew that from the very beginnings of written language, limits of text and imagination have complicated efforts to use written words to convey important messages to friends and neighbors, to say nothing of conveying complex political
instructions to future generations. Witness the current massive disagreement and confusion over how judges should read the Bill of Rights, ranging from Justice Thomas's strict literalism, through various versions of “originalism” favored by Justice Scalia, to Justice Brennan's embrace of the “living constitution,” Justice Souter's thoughtful explorations of how best to advance the Founders' basic purposes, and Justice Breyer's invocation of egalitarian democracy as a textual tiebreaker.

Madison also recognized that the Founders, being human, might leave an important right out of the literal text because they forgot it, overlooked it, or erroneously rejected it. As we'll see, that's just what happened when the Senate rejected Madison's secular conscience clause and his clause applying portions of the Bill of Rights to the states. Madison's antidote was to close his poem with careful directions in the Ninth and Tenth Amendments about how to read the constitutional text. The Ninth Amendment, acknowledging the possibility of additional rights “retained by the people,” empowers future generations to cope with ambiguous drafting, inadvertent omission, or outright mistakes by: (1) reading the rights-bearing text generously and (2) invoking analogy and structural need, through a process known to the Founders' generation as “the equity of the statute,” to imply the existence of nontextual rights.
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Conversely, the Tenth Amendment instructs future generations to read the power-granting text narrowly and to refrain from implying new powers through analogy and structural need. Madison rooted his constitutional reading lesson in two venerable British parliamentary approaches to construing text, which guide us more than two hundred years later in reading the Constitution and statutes today. One technique—summarized by the Latin phrase
inclusio unis est exclusio alterium
, “inclusion of one thing is exclusion of the other”—instructed British judges to read parliamentary statutes in a narrow, literal way. If something was not actually mentioned in the literal text,
inclusio unis
forbade a British judge from extending the text's coverage to closely analogous settings. For example, if the British Parliament enacted legislation regulating “betting
establishments,” British bookies were free to ignore the regulations as long as the bet was made at the track and not at the “betting establishment.”

The competing statutory construction technique was the “equity of the statute,” authorizing British judges to expand laws beyond their literal wording to closely related, analogous settings, but only when such expanded coverage was broadly consistent with the text and was deemed necessary to carry out Parliament's intentions more effectively. For example, if Parliament made it a hanging offense for “a servant to strike
his
master,” applying the equity of the statute to the male pronoun
he
would by analogy extend it to a female pronoun,
she
, permitting the death sentence to be imposed on both male and female servants.

That is exactly what Justice Harlan did in 1958 when he used analogy and implication to uncover the right of free association latent in the First Amendment's text.
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It is also what the Court did when it found extratextual exclusionary rules in the Fourth and Fifth Amendments,
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when it inserted an extratextual requirement of proof beyond a reasonable doubt into the Fifth and Sixth Amendments,
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and when it interpreted the Sixth Amendment to include an extratextual right to appointed counsel.
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Finally, Justice Harlan used the same technique to bridge the constitutional gap between religious and secular conscience created by the Founders' failure in 1789 to accept Madison's original freedom of conscience clause.
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A close look at the history of the Ninth and Tenth Amendments explains why Justice Harlan was right.

The immediate historical origins of the Ninth and Tenth Amendments are easy enough to trace. During the debates over the 1787 Constitution, critics argued first that listing our basic rights in a single document would be a dangerous mistake because the Founders might leave something important out of the catalog of rights. It was not a frivolous objection. The Founders made at least two serious mistakes when the Senate deleted Madison's freedom of secular conscience clause and his proposed clause applying portions of the Bill of Rights to the states. It's heartbreaking to speculate about
what might have been if Southern antislavery forces had been able to invoke the First Amendment in the years leading up to the Civil War. Opposition to slavery among whites existed in most of the slave states. In 1832, for example, there was a major debate over abolition in the Virginia legislature. Once iron censorship laws had silenced antislavery voices throughout the South, however, local opposition disintegrated, intensifying sectional polarization and depriving the nation of the possibility of a political solution to slavery. Similarly, failure to include Madison's secular conscience clause in the 1791 Bill of Rights permitted the imprisonment of supporters of the Underground Railway, engaged in aiding escaped slaves to reach safety in Canada, and the jailing of pacifist opponents to World War I. It took 150 years—and a dose of Ninth Amendment Madisonian poetry—for the Supreme Court to correct both mistakes, by: (1) recognizing an implied First Amendment protection of secular conscience; and (2) applying the Bill of Rights to the states through the word magic of the Fourteenth Amendment's Due Process Clause.

Today when someone invokes a constitutional right of privacy—such as the right to use birth control, to choose whether to bear a child, or to terminate a life of pain and suffering with dignity—many constitutional experts, including many thoughtful judges, answer that if the Founders had wished to protect privacy in the Constitution, they would have explicitly included the protection in the text of the Bill of Rights. They argue that because the right can't be found in the original text it doesn't exist. That's just what opponents of the Bill of Rights were worried about in 1787 when they blocked a Bill of Rights for the original constitution. The Ninth Amendment was Madison's antidote.

Opponents of a Bill of Rights also feared that singling out a right might imply the existence of a correlative government power. Ironically, in 1798, supporters of the now infamous Alien and Sedition Acts, which censored the press, argued that if regulatory power over the press didn't exist, why did the Founders need to insert a Free Press Clause limiting it? Similarly, the Fifth Amendment closes
with a clause forbidding the United States from taking private property for public use without paying just compensation. The Founders' decision to insert such an explicit right in the Bill of Rights has given rise to an argument that they must have intended the national government (as opposed to the states) to possess implied power to take private property for public use through eminent domain, even though no such power is mentioned in the constitutional text. The Tenth Amendment was Madison's antidote to such government power creep.

Unfortunately, current readings of both the Ninth and Tenth Amendments ignore Madison's music. Justice Douglas read the Ninth Amendment as authorizing a kind of judicially enforceable “natural law.” Natural law is a magnificent philosophical abstraction that seeks to identify and catalog rights that are (or should be) enjoyed in the very nature of things by all human beings. The idea of natural law as a protector of human dignity has been a glorious banner behind which millions have marched in the struggle against oppression. Natural law was Thomas Jefferson's inspiration when he wrote, “We hold these truths to be
self-evident
, that all men are created equal, that they are endowed by their Creator with certain
unalienable
rights, that among these are Life, Liberty and the pursuit of Happiness.” Natural law forbidding slavery was the banner under which Union troops fought and died during the Civil War. Respect for dignitary values rooted in natural law was the banner that the United States carried throughout the twentieth century in its successful struggles against Nazism and Communism. It was the guiding principle of the Nuremberg trials. It is the hope that we hold out today to the Arab Spring (or what's left of it), Chinese dissidents, and the emerging democracies of Asia, Africa, and South America.

However, because it is hopelessly subjective, the idea of natural law has not proved a useful concept in actually governing a tolerably fair democracy. For example, a reasonably developed theory of natural law can protect a woman's right to choose whether to bear a child, but it can also protect a fetus's right to life. It can protect a
right to health, housing, and nutrition, but it can also insist on economic markets inherently free from government regulation. Appeal to natural law can protect the inherent sanctity of gay marriage, but it can also condemn gays to opprobrium and discrimination. In short, the idea of natural law is often an empty vessel into which we pour our most cherished personal values. In a truly democratic society, unelected judges should not be empowered to force citizens to embrace a set of personal values simply because the judge, in the process of reading the Ninth Amendment, labels them as flowing logically from respect for human dignity. But the alternative modern reading of the Ninth Amendment is even worse. When Robert Bork was asked about the meaning of the Ninth Amendment during his ill-fated Supreme Court confirmation hearings, he dismissed it as an “ink blot” having no judicially enforceable effect.