Abstract
In 2016’s Most Blessed of the Patriarchs, Annette Gordon-Reed and Peter S. Onuf explain that Thomas Jefferson was concerned how his Declaration of Independence would sound in the minds of Americans. Jefferson viewed the document like a musical score, wanted people to hear its resonant phrases, wanted to give it the proper tone, and claimed its authority rested on harmonizing the sentiments of the day.
Burt Neuborne’s Madison’s Music: On Reading the First Amendment suggests the First Amendment, largely written by Jefferson’s founding brother, James Madison, should be approached similarly. “A poetic vision of the interplay between democracy and individual freedom is hiding in plain sight,” Neuborne writes, with a democracy-friendly First Amendment emerging if we can recover our ability to hear Madison’s music. By viewing the First Amendment holistically rather than as a collection of “broken fragments,” a greater understanding of Madison’s purpose emerges. That purpose is a roadmap for democracy.
Burt Neuborne is an award-winning professor, scholar, and attorney, currently at the Brennan Center for Justice in New York University’s School of Law. His impressive background includes serving as national legal director for the American Civil Liberties Union (ACLU), and the authorship of several law review articles. Madison’s Music is his fourth book, and in it, he occasionally utilizes some of his experiences from a first-person perspective.
As part of the ongoing effort to understand the First Amendment, Neuborne has contributed mightily. He claims the Bill of Rights opens with a blueprint for an ideal “city on a hill”—a place of respect for individual conscience, robust political discussion, and democratic self-government. “The First Amendment is a crucial milestone in the evolution of political thought,” he writes—the first time six foundational human rights had been united in a single text. In that First Amendment, Neuborne claims, Madison deploys democracy’s core concepts on an inside-to-outside axis: from freedom of thought, to interaction with the community, to the process of democratic lawmaking—a progression of democratic freedom from idea, to speech or press, to enacting a law.
Ignoring Madison’s Music, Neuborne says, has resulted in a democracy-unfriendly evolution of government led by a U.S. Supreme Court that alternates between being “suffocatingly strict” and “inexplicably absent.” It is here that the reader may discern the genesis of Neuborne’s premise. His book contains impassioned arguments on several topics, including against what he views to be the erosion of a core value of Madison’s First Amendment: contestable elections. “One person-one vote” has been transformed, he says, into “one dollar, one vote.” Accordingly, Neuborne is critical of specific Court rulings that he believes contributed to this erosion—for example, Citizens United v. FEC and Bush v. Gore. One suspects that his opposition to these rulings drove Neuborne’s quest for an interpretive framework that could have produced different results. Reading the First Amendment in the “democracy-friendly” manner that he believes Madison intended could have achieved that goal.
Therein lies what at least needs to be considered a caveat of Madison’s Music: the premise—a fascinating and provocative one, no doubt—is strictly Mr. Neuborne’s. There is no evidence that Madison intended for the First Amendment’s parts to be read as a whole—certainly none appear in this book. Madison’s own work—for example, correspondence with his contemporaries, his pieces in The Federalist, or his “Report on the Virginia Resolutions”—is neither mentioned nor cited. In fact, given that all of the first 10 amendments were the results of compromise, there is evidence presented that actually seems to refute Neuborne’s premise. Neuborne himself explores how the Bill of Rights, particularly the First Amendment, was cobbled together through an extensive debate process. Rather than Madison’s Music, perhaps a more accurate title for this book of personal passion might have been Neuborne’s Narrative on Reading the First Amendment.
This book, Neuborne acknowledges, is unlike his other work in that it is aimed at a general audience rather than a scholarly one. Indeed, his opening sentence disavows any notion that Madison’s Music is a work of history. That said, the book contains history, or at the least, Neuborne’s take on it. His overall critique of the judiciary, for example, includes challenging judicial review and Marbury v. Madison. In addition, the final and arguably misplaced chapter is nothing but foundational history, with but a single footnote telling the reader there will be no other cites. Instead, the reader is told, “You could look it up.”
The nontraditional premise of Madison’s Music is a double-edged sword: While its view is valuable for its uniqueness, boldness, and insight, it is unconventional to an extent that it is difficult to recommend the book for basic classroom use. That is, if the desire is to provide an essential understanding of the First Amendment and the jurisprudence surrounding it, this is not a resource for that. If, instead, the goal is to dramatically expand the scope of possible First Amendment interpretations and perspectives beyond those considered basic, then adoption of this innovative work is a viable option.
It seems clear that by and large, Neuborne has not written “what was” or “what is,” but in his view “what should be.” Although that approach may have some limitations, in this book it also contains great value.