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Madison's Music: On Reading the First Amendment
“A detailed history of the transformation of First Amendment law” from one of the nation’s foremost civil liberties lawyers ( The New York Times ).
Are you sitting down? It turns out that everything you learned about the First Amendment is wrong. For too long, we’ve been treating small, isolated snippets of the text as infallible gospel without looking at the masterpiece of the whole. Legal luminary Burt Neuborne argues that the structure of the First Amendment as well as of the entire Bill of Rights was more intentional than most people realize, beginning with the internal freedom of conscience and working outward to freedom of expression and finally freedom of public association. This design, Neuborne argues, was not to protect discrete individual rights―such as the rights of corporations to spend unlimited amounts of money to influence elections―but to guarantee that the process of democracy continues without disenfranchisement, oppression, or injustice.
Neuborne, who was the legal director of the ACLU and has argued numerous cases before the Supreme Court, invites us to hear the “music” within the form and content of Madison’s carefully formulated text. When we hear Madison’s music, a democratic ideal flowers in front of us, and we can see that the First Amendment gives us the tools to fight for campaign finance reform, the right to vote, equal rights in the military, the right to be full citizens, and the right to prevent corporations from riding roughshod over the weakest among us. Neuborne gives us an eloquent lesson in democracy that informs and inspires.
“In the dark art of lawyering, Neuborne has always been considered a white knight.” ― New York
Are you sitting down? It turns out that everything you learned about the First Amendment is wrong. For too long, we’ve been treating small, isolated snippets of the text as infallible gospel without looking at the masterpiece of the whole. Legal luminary Burt Neuborne argues that the structure of the First Amendment as well as of the entire Bill of Rights was more intentional than most people realize, beginning with the internal freedom of conscience and working outward to freedom of expression and finally freedom of public association. This design, Neuborne argues, was not to protect discrete individual rights―such as the rights of corporations to spend unlimited amounts of money to influence elections―but to guarantee that the process of democracy continues without disenfranchisement, oppression, or injustice.
Neuborne, who was the legal director of the ACLU and has argued numerous cases before the Supreme Court, invites us to hear the “music” within the form and content of Madison’s carefully formulated text. When we hear Madison’s music, a democratic ideal flowers in front of us, and we can see that the First Amendment gives us the tools to fight for campaign finance reform, the right to vote, equal rights in the military, the right to be full citizens, and the right to prevent corporations from riding roughshod over the weakest among us. Neuborne gives us an eloquent lesson in democracy that informs and inspires.
“In the dark art of lawyering, Neuborne has always been considered a white knight.” ― New York
272 pages, Hardcover
First published February 3, 2015
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148 people want to read
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May 27, 2015
You should read this entertaining, erudite, fatally flawed, and ultimately incoherent book. I finished it, the thirty-three book I have read this year, at the airport in Rome on my way back from Cinque Terre. There is a great deal of enlightening history.
The first fatal flaw results from Professor Neuborne's apparently immediately forgetting how he (p. 1) begins. "This is not a work of history. I claim no special expertise about James Madison's interior life. Nor do I claim to be describing his subjective purpose. " He then spends much of the rest of the book telling what Madison would have said, though, or felt about the issues at hand.
He recognizes (p. 5) that, "The words aren't much help." Fatally, he never quite seems to recognize that the way to get his interpretation is to do the hard work of understanding the opposition and develop an argument that will produce a President and Senate that will put him on the Supreme Court.
The closely related third flaw is the failure to recognize how mixed the data the efficacy of money on elections are. The "dysfunction" is not with the "system," but rather with the Left's ability to feel good about itself while expressing (p. 79 "unwitting voters") contempt for the people it failed to convince. In contrast when Boeing loses a sales campaign or proposal, we do not sit around talking about how "unwitting" the customer is: we work at getting to know the customer better, to understand their concern and refine our argument.
The second and third flaws are captured on p. 179 ". . . none of the current approaches to reading . . . the constitutional text delivers a single value-neutral indisputably correct constitutional meaning" (dead wrong - that is precisely what Supreme Court rulings are.); p. 180 ". . . So far we haven't come up with a generally accepted way . . . (again dead wrong - this is, again, precisely what Supreme Court rulings are.); p. 181 ". . . so much power to unelected judges . . . (whom are appointed by the President and Senate that we do elect. If Professor Neuborne wants to be on the Supreme Court, he is going to have to do the hard work of electing the right President and Senate.).
Professor Neuborne does recognize (p. 196) "that a rights - bearing document backed by popular support can move mountains." Time to do the hard work to generate that support?
Professor Neuborne notes, of Madison, (p. 97), He knew the habits of thought that enable free people . . . ,curiosity about and respect for others, . . This is pretty far from his (p. 79) troglodytic contempt for "misguided voters."
Professor Neuborne would also do well to read "Rock, Paper, Scissors How we used to vote," by Jill Lepore, Annals of Democracy, The New Yorker, October 13, 2008 (http://www.newyorker.com/magazine/200...) to see the obstacles that people believed any "man of ordinary courage" could have overcome in 1860: it is hard to imagine that Madison, in an earlier time, would have thought that today's obstacles constitute denial of the right to vote.
I could not agree more, with Professor Neuborne, on gerrymandering. Gerrymandering has a long and honorable history going back to Clythenes in sixth century Athens and the Tribal Assembly in the early days of the Roman Republic. The catch is that this early "gerrymandering" was accomplished to create districts that reflected the polis or republic: the exact opposite of what we have done.
If it was up to me all district boundaries, other than state boundaries, would be straight east/west and north/south lines from National boundary to national boundary.
Professor Neuborne's (p. 154) observation on "The irony . . . lost on the eighteenth - century mind." is redolent of presentism.
His history of "Maybury vs. Madison"
(p. 161. . . . . a legal farce in three acts worthy of Monty Python.) Is is both enlightening and entertaining.
p. 168. Congress would not grant mandamus power to the lower federal courts until 1962.
p. 175. "Dredge Scott v. Sanford," a consensus choice for the worst decision
In Supreme Court history, is a nightmare application of originalism, illustrating the moral and political price of looking backward to read our most precious legal text.
Chief Justice Roger Taney, writing in 2857, looked backward to the ethos of the 1787 Constitution and reasoned . . . protect slavery . . . inferior black race.
p. 176. . . . invalidated the Missouri Compromise . . . It took a bloody Civil War . . . to reverse Taney's toxic exercise in racist originalism.
The first fatal flaw results from Professor Neuborne's apparently immediately forgetting how he (p. 1) begins. "This is not a work of history. I claim no special expertise about James Madison's interior life. Nor do I claim to be describing his subjective purpose. " He then spends much of the rest of the book telling what Madison would have said, though, or felt about the issues at hand.
He recognizes (p. 5) that, "The words aren't much help." Fatally, he never quite seems to recognize that the way to get his interpretation is to do the hard work of understanding the opposition and develop an argument that will produce a President and Senate that will put him on the Supreme Court.
The closely related third flaw is the failure to recognize how mixed the data the efficacy of money on elections are. The "dysfunction" is not with the "system," but rather with the Left's ability to feel good about itself while expressing (p. 79 "unwitting voters") contempt for the people it failed to convince. In contrast when Boeing loses a sales campaign or proposal, we do not sit around talking about how "unwitting" the customer is: we work at getting to know the customer better, to understand their concern and refine our argument.
The second and third flaws are captured on p. 179 ". . . none of the current approaches to reading . . . the constitutional text delivers a single value-neutral indisputably correct constitutional meaning" (dead wrong - that is precisely what Supreme Court rulings are.); p. 180 ". . . So far we haven't come up with a generally accepted way . . . (again dead wrong - this is, again, precisely what Supreme Court rulings are.); p. 181 ". . . so much power to unelected judges . . . (whom are appointed by the President and Senate that we do elect. If Professor Neuborne wants to be on the Supreme Court, he is going to have to do the hard work of electing the right President and Senate.).
Professor Neuborne does recognize (p. 196) "that a rights - bearing document backed by popular support can move mountains." Time to do the hard work to generate that support?
Professor Neuborne notes, of Madison, (p. 97), He knew the habits of thought that enable free people . . . ,curiosity about and respect for others, . . This is pretty far from his (p. 79) troglodytic contempt for "misguided voters."
Professor Neuborne would also do well to read "Rock, Paper, Scissors How we used to vote," by Jill Lepore, Annals of Democracy, The New Yorker, October 13, 2008 (http://www.newyorker.com/magazine/200...) to see the obstacles that people believed any "man of ordinary courage" could have overcome in 1860: it is hard to imagine that Madison, in an earlier time, would have thought that today's obstacles constitute denial of the right to vote.
I could not agree more, with Professor Neuborne, on gerrymandering. Gerrymandering has a long and honorable history going back to Clythenes in sixth century Athens and the Tribal Assembly in the early days of the Roman Republic. The catch is that this early "gerrymandering" was accomplished to create districts that reflected the polis or republic: the exact opposite of what we have done.
If it was up to me all district boundaries, other than state boundaries, would be straight east/west and north/south lines from National boundary to national boundary.
Professor Neuborne's (p. 154) observation on "The irony . . . lost on the eighteenth - century mind." is redolent of presentism.
His history of "Maybury vs. Madison"
(p. 161. . . . . a legal farce in three acts worthy of Monty Python.) Is is both enlightening and entertaining.
p. 168. Congress would not grant mandamus power to the lower federal courts until 1962.
p. 175. "Dredge Scott v. Sanford," a consensus choice for the worst decision
In Supreme Court history, is a nightmare application of originalism, illustrating the moral and political price of looking backward to read our most precious legal text.
Chief Justice Roger Taney, writing in 2857, looked backward to the ethos of the 1787 Constitution and reasoned . . . protect slavery . . . inferior black race.
p. 176. . . . invalidated the Missouri Compromise . . . It took a bloody Civil War . . . to reverse Taney's toxic exercise in racist originalism.
September 18, 2016
Elegant, concise, and powerfully to the point, Madison's Music should be required reading for anyone interested in our democracy and how the Bill of Rights should be viewed. Rather than isolating the phrases of the First Amendment from one another, they need to be looked at in their entirety as should the entire Bill of Rights. Only then can we see the nuanced picture that Madison intended. This book is thoughtful and eminently readable and deserves the 5 stars I have given it.
May 27, 2018
This was a book that had a lot of promise but is ultimately undone by the author's constant editorializing and lack of historical knowledge. The author is a lawyer, not a historian, and it shows in the writing of the book. In several places he gets historical details wrong, and in others he replaces his general opinion for a prescription for what the Court has gotten wrong in interpreting the First Amendment. For example, in one section he says that the Court could just figure out a way to find campaign finance laws to be in line with the First Amendment, without giving any real guidance as to how to do that or what it would look like.
There are some real gems in this book though. His suggestion that we read the 9th and 10th Amendments in tandem with one another is a great way to think about them, and his concept that we over-privilege speakers with regards to First Amendment rights at the expense of listeners is a thought I am still wrestling with.
There are some real gems in this book though. His suggestion that we read the 9th and 10th Amendments in tandem with one another is a great way to think about them, and his concept that we over-privilege speakers with regards to First Amendment rights at the expense of listeners is a thought I am still wrestling with.
July 14, 2020
The first 4 chapters of Neuborne's book lay out a fascinating view of how the various parts of the First Amendment...indeed the entire Bill of Rights...can be interpreted. It's worth the read.
Unfortunately the rest of the book is Neuborne laboriously attempting to make all of Supreme Court history fit a contorted interpretation of his own making. If you want a book about the Court and about the Law or the Constitution...skip this one. Once he starts talking about "Republican judges" all bets are off. He does attempt at one point to explore originalism and textualism but butchers the concepts with his partisan political views.
This is more Maddow than Toobin.
Unfortunately the rest of the book is Neuborne laboriously attempting to make all of Supreme Court history fit a contorted interpretation of his own making. If you want a book about the Court and about the Law or the Constitution...skip this one. Once he starts talking about "Republican judges" all bets are off. He does attempt at one point to explore originalism and textualism but butchers the concepts with his partisan political views.
This is more Maddow than Toobin.
Read
April 5, 2022One of the best books I have ever read on Constitutional issues.
April 10, 2016
So, I think most of this book is derived from working backwards from two premises: (1) Textualism/originalism does not solve problems. (2) Citizens United is the literal devil.
I was working hard on coming up with some sort of tricky wordplay involving the phrase "method in the madness." Neuborne clearly believes that there is a method in the madness of the Supreme Court's decisions over the past 50 years (which in the book do get truncated so as to look somewhat more incoherent than they are over time). That method is to focus too much on narrow problems (and to take generally antiregulatory). But really the broader objection is that there is madness in having a method. Neuborne appears to disapprove of any general way to resolve constitutional problems except possibly pragmatism, which he attributes to Justice Breyer's Active Liberty.
So the general command is: Obtain good results from the perspective of the entire system.
That's not bad, but it's certainly hard to do with consistency.
For most of the book, it seems like the major issue is that the Supreme Court has been to protective of every individual incident of what they see as speech than with preserving a pluralistic democracy where many voice have sufficient reach. Although Neuborne argues that money does not equal speech, he spends a lot of the book talking about areas in which he believes speech should be regulated seemingly to lay the groundwork for the argument that it's OK to regulate what is now considered political speech (corporate/unlimited spending.) It never quite gels into a system and it's never clear what prevents the slippery slope from happening except the goodwill of man.
Probably the best parts of this book are isolated moments of genius, seemingly untethered to the general thesis.
I was working hard on coming up with some sort of tricky wordplay involving the phrase "method in the madness." Neuborne clearly believes that there is a method in the madness of the Supreme Court's decisions over the past 50 years (which in the book do get truncated so as to look somewhat more incoherent than they are over time). That method is to focus too much on narrow problems (and to take generally antiregulatory). But really the broader objection is that there is madness in having a method. Neuborne appears to disapprove of any general way to resolve constitutional problems except possibly pragmatism, which he attributes to Justice Breyer's Active Liberty.
So the general command is: Obtain good results from the perspective of the entire system.
That's not bad, but it's certainly hard to do with consistency.
For most of the book, it seems like the major issue is that the Supreme Court has been to protective of every individual incident of what they see as speech than with preserving a pluralistic democracy where many voice have sufficient reach. Although Neuborne argues that money does not equal speech, he spends a lot of the book talking about areas in which he believes speech should be regulated seemingly to lay the groundwork for the argument that it's OK to regulate what is now considered political speech (corporate/unlimited spending.) It never quite gels into a system and it's never clear what prevents the slippery slope from happening except the goodwill of man.
Probably the best parts of this book are isolated moments of genius, seemingly untethered to the general thesis.
February 12, 2016
It was hard to rate this book written by an excellent jurist who, for the most part, lets his enthusiasm for the work of the ACLU run far ahead of his stated purpose. After two introductory chapters that weren't too bad, there follow four more that could have constituted a self-contained tract entitled, "A screed on how awful the Citizens United decision was." The last two chapter were very good, but I had to reread them because they simply weren't written very well. At first I thought I had to reread them because I was thick-skulled, but as I wrote down the many useful points in my notes, I had to admit that although the author is lawyer who can really turn a phrase when he needs to, these chapters just were not very well organized. In between the screed and the two final excellent chapters, there were two other chapters that were middling. I thought for the most part the points were well taken, but, again, I couldn't help noticing some pretty blatant flaws with the writing; like the occassional paragraph that ran on for two pages or more.
April 24, 2016
This is a fascinating, eloquent, clear-as-a-bell dissection of the First Amendment. The author postulates that Madison meant the First Amendment in particular and the Bill of Rights in general as a guide to building and sustaining a functioning, effective democracy, and urges that courts interpret them through that lens.
The arguments Professor Neuborne presents in support of his position are cogent and compelling. Would that we could get this fellow on the Supreme Court.
Professor Neuborne teaches civil liberties law at New York University School of Law and is founding legal director at the renowned Brennan Center for Justice. The preface, in which he dedicates the book to his father, is worth the price of the book all by itself. Don't miss it.
The arguments Professor Neuborne presents in support of his position are cogent and compelling. Would that we could get this fellow on the Supreme Court.
Professor Neuborne teaches civil liberties law at New York University School of Law and is founding legal director at the renowned Brennan Center for Justice. The preface, in which he dedicates the book to his father, is worth the price of the book all by itself. Don't miss it.
April 13, 2015
An outstanding treatment of an approach to Constitutional construction that considers the 1st Amendment as a coherent whole and argues for the rights of hearers of speech and not just purveyors only. Under this approach, for example, Citizens United would be anathema to democracy.
Want to read
January 24, 2016I have yet to read this book (waiting until the Kindle price drops), but in the meantime may I suggest two very pithy reviews:
http://www.nybooks.com/articles/2015/...
and Jim Roble's review at https://www.goodreads.com/review/show...
http://www.nybooks.com/articles/2015/...
and Jim Roble's review at https://www.goodreads.com/review/show...
March 9, 2015
Special book for me. I had the pleasure of interviewing Burt Neuborne for a JURIST podcast:
http://jurist.org/podcast/2015/02/bur...
http://jurist.org/podcast/2015/02/bur...
August 4, 2015
MAGNIFICENT. I will post a longer review soon.
Displaying 1 - 12 of 12 reviews