A Fresh Look at the Bill of Rights (2017 version)

17-11 A Fresh Look at the Bill of Rights

Marty Peterson: When you read the Bill of Rights, do you think of them as separate, somewhat unrelated additions to the Constitution? In school, most of us learn that the first 10 amendments are distinct items to be discussed and memorized as such. This struck Burt Neuborne as wrong. Neuborne is the Norman Dorsen Professor of Civil Liberties at New York University Law School and former National Legal Director of the American Civil Liberties Union. He writes about why the Bill of Rights needs to be read and understood as a whole, in his book, Madison’s Music: On Reading the First Amendment. He came to this realization one day while he was learning how to use the word processing program on his laptop.

Burt Neuborne: I typed the Bill of Rights out and was practicing highlighting portions of it and moving it around to learn how to move text around. I realized as I was doing it that everything I moved to any other place felt wrong. It felt like it was in the wrong place. And if I take the second clause of the First Amendment up and moved it and put it at the end, it was wrong, it didn’t read right. Or if I took the Second Amendment and put it where the Sixth Amendment was, that was the wrong place for it. And I thought first it’s just a question of habit. I must be so used to seeing it that way that it’s a new thing. And then I said to myself, “Wait a minute. Is there something there that I haven’t seen all these years? Is there really a deep structure that the First Amendment and for the Bill of Rights itself that will help us read it, help us understand it the same way that there would be a deep structure to a great poem or something like that.

Peterson: Neuborne wondered if there was a story in the Bill of Rights that would help us to read it more richly and more accurately.

Neuborne: And sure enough when I really spent a little time with it I was astonished that the deep structure was there. I think we used to know about it in the 19^th century, be we’ve essentially forgotten it and instead we read it as a series of unrelated words. It’s as though the Founders took a pot of ink and threw it at the wall, and they let the splatter of the ink decide the order and structure of the Bill of Rights, as though it was all random. And of course, it’s not random. It’s there in a very carefully, brilliantly organized way. It’s really Madison’s genius. He was not a particularly creative thinker, but he was a brilliant organizational and brilliant structural thinker.

Peterson: Madison could have put together just a laundry list of amendments for the Bill of Rights – and that’s often how we think of it today – but Neuborne says he wrote it so that evolved in a very logical way.

Neuborne: There are 45 words in the First Amendment. Take the six clauses. There are six clauses in those 45 words: the establishment clause which says that we can’t establish a religion; the free exercise clause that says we’re entitled to freely exercise our religion; the free speech clause which says we can speak freely; the free press clause; the free assembly clause and the free petition clause. Is it like eggs, milk, and paper bags – it doesn’t much matter what order they’re in, they’re just six ideas, and they’re just a laundry list? Or is there something really special about the fact that he starts with religion? He starts with what in the 18^th century would be the strongest idea of conscience. They didn’t have a particularly strong secular conscience and idea in those years, we have now. But in those years conscience was essentially religious ideas. And so he starts with two clauses that protect the free conscience of a free person living in a free democracy. And that’s the place where democratic ideas begin.

Peterson: Once you have an idea, their right to articulate it needs to be protected, and that’s the freedom of speech clause in the amendment. Neuborne says that the next part, freedom of the press, lets that idea be disseminated to the mass public through the media.

Neuborne: So then, Madison says, “Well once the mass public knows about it, what are they supposed to do?” Well, they engage in proactive action in support of the idea. That’s the assembly clause. The assembly clause is right where it’s supposed to be, after the press clause because you then have collective action, you organize. And then the final clause is the petition clause where you actually take it directly to the legislature, put it on the floor of the legislature, and demand that they vote on it. If you think about it for a moment, those six ideas are the arc of the democratic idea – and the idea that is formed in the free conscience of a free citizen, freely articulated, freely disseminated on a mass basis to the population, the population that has freely allowed to organize around it with collective action and then freely submit it for a petition. You couldn’t take a single word in that amendment and move it to another place without destroying the structure.

Peterson: Not only is the First Amendment written in a structured, way, Neuborne says the other amendments and the entire Bill of Rights is also written in this way.

Neuborne: The Second and Third Amendments are amendments that deal with military overthrow because the Founders realized that the greatest threat to any democracy is a military overthrow. If you look at the history of democracies in the world, 90-percent of all democracies eventually succumb to some sort of military overthrow. So the Founders put in there a protection, a structural protection in the Second Amendment by creating a shadow army, the shadow army of the entire people, armed and capable of defending a democracy against a military that doesn’t look like them. Against a military that is an unrepresentative organ. Now during the 19^th century, the militia, which was the shadow army, collapsed. It just fell out of use. So the question is, what’s the meaning of the Second Amendment today? Well, the Second Amendment should say to us today if we read it in a structured way, is that everybody has the right to bear arms. Everybody has the right to bear arms in defense of democracy. Not to go off in some isolated place in the country and wall yourself off from society with a gun, but to be a functioning member of the democracy, and to help protect it. And that’s what the Second and Third Amendments are.

Peterson: The Fourth through Eighth Amendments are about law enforcement and the courts. Neuborne says they also follow in perfect order and paint a picture of how people must be protected from the government if they’re suspected or arrested for a crime.

Neuborne: They are organized as a perfect chronological story of the criminal investigation. The Fourth Amendment deals with investigation and arrest; the Fifth Amendment deals with interrogation and charging. The Sixth and Seventh Amendments deal with adjudication and the Eighth Amendment deals with punishment. It couldn’t be more perfect, that is an exact replica of what the criminal procedure system looks like.

Peterson: The Ninth and Tenth Amendments are about the people’s rights and the government’s powers, and how the Constitution should be read.

Neuborne: The Ninth Amendment says read rights as broadly as possible. The Tenth Amendment says read powers very narrowly. And as you simultaneously read right broadly and powers narrowly, you keep yourself free as a people. So if we would only read it that way, instead of insisting that they’re just isolated words on a piece of paper, if we would read it as a great story of a functioning democracy and a great story of institutionally how we protect that functioning democracy, I think much of our constitutional law would change.

Peterson: Neuborne says that in his opinion, reading the Bill of Rights as isolated words has led to some bad decisions by the Supreme Court and bad laws that are eroding our freedoms so carefully outlined by James Madison. He cites the campaign financing laws that allow corporations and unions to spend as much as they want to influence voters to support one candidate over another.

Neuborne: The Supreme Court campaign finance decisions that have created a democracy for the rich, are just wrong. It can’t be that the First Amendment forces us into a democracy for the rich when the whole First Amendment is about having a democracy work best. It seems to me if one were to realize the linkages there, one would immediately say that the campaign finance decisions are wrong.

Peterson: Neuborne says that if Madison could come back and see how his Bill of Rights had been interpreted, he’d be appalled. He said that the Founders wouldn’t want so much power vested in the super-wealthy, and the government spying on people’s personal phone calls, emails, and other private behaviors.

Neuborne: The last kind of government I was thinking about was a government that was free to spy on its people virtually without any kind of constraint because somehow they could sneak through the white spaces in between the Fourth and Fifth Amendments, and find little places to hide. One of the benefits of reading the Bill of Rights the way I urge people to read it, that the Fourth through the Eighth Amendments are an integrated whole dealing with the criminal procedure area, is that it doesn’t leave the government any white spaces to hide in. It becomes a structural protection of individual liberty against the government’s intrusion, one of which is inappropriate surveillance. And you wouldn’t be able to engage in that kind of surveillance now, you wouldn’t be able to put undercover people into mosques and have them set people against each other, at least not without the kind of judicial supervision that is required whenever you conduct a search.

Peterson: Neuborne says it’s not just the Supreme Court that’s to blame, but also the lawyers who bring cases before the Justices.

Neuborne: American lawyers have forgotten to ask them to read the whole text. They’ve forgotten to ask them to please pay attention to democracy. The frustration that drove me to write the book was in my career, has been a career of legal director of the ACLU, as a civil rights lawyer, my first Supreme Court appearance was in the 1960s, so I care about the institution and I care about the rules. But over the years I’ve seen us get further and further and further away from the democratic structure that is the core of the First Amendment and the Bill of Rights, and in some sense, it’s not the Court’s fault anymore because lawyers have stopped making the argument. And the public simply accepts it.

Peterson: Neuborne says that we should not rely solely on lawyers and judges to tell us what the Bill of Rights means and how it should be interpreted. Instead, he encourages Americans to read it more carefully on their own.

Neuborne: I would appreciate it if they would take a look at the book, but more importantly I would appreciate it if what they would do is take their First Amendment out, take their Bill of Rights out, look at it, read it, see it. You don’t have to be a lawyer to do this. Read the ten amendments, take them for a walk outside, give them a little fresh air, and see if they don’t tell you a story that helps you understand the text better.

Peterson: For ideas on how the Bill of Rights should be read, you can pick up Burt Neuborne’s book, Madison’s Music, at stores and online. You can find more information about all of our guests by visiting our site at viewpointsonline.net. You can follow us on Twitter @viewpointsradio. Our show is written and produced by Evan Rook and Pat Reuter. Our executive producer is Reed Pence. Our production director is Sean Waldron. I’m Marty Peterson.