About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, February 14, 2015

"Madison's Music: On Reading the First Amendment"

The idea behind this book by Burt Neuborne is worthwhile. He argues that the First Amendment should be read as a sort of poem that is a comprehensive message of freedom and democracy, an overall approach to be taken for the Bill of Rights and Constitution as a whole.  It starts with a touching page long dedication to his dad (a taste: he promised his young son that they would see the Giants when he came back from WWII, but did not since they weren't integrated -- BN's future career in civil liberties was in his blood).  It's entitled: "Odysseus the Tailor."

And, it has an extended section later on that skewers Marbury v. Madison as a result of some self-interested politician sort, who was not being honest about various things (e.g., the basic argument that the request for relief was unconstitutional was far from clearly the case).  Neuborne's long record in front of the courts, including the Supremes, surely influenced the bemused and somewhat cynical tone here. I don't think it that surprising, nor that Marbury is quite as bad as he makes it out to be. Not that he's alone in slaying that dragon. Perhaps, though, it is one that needs underlining, especially when I see some people given the courts the unique rule to decide questions of law and/or ignore how others affect that. Others overcompensate.  Go in between!.

The message: be careful and remember we can merely trust the courts.  This is well taken though -- and this begins the negative --  Yes, all are involved here -- "We the People," each branch of the federal and state government and so forth.  This is why the whole Alabama same sex marriage issue from the federal judge's order, Roy Moore's response, the actions of the probate judges, the commentary from various sources down to the general public (not the least the couples involved!) are ALL important here. And, this provides an important role for the democratic republican protections, including structural, that are found in the Constitution.  It also advances the progressive view of campaign finance reform, voting rights, individual rights of conscience and so forth.  The current Supreme Court is of mixed value here.

The document is not crystal clear.  Reading it as a whole and looking for an overall theme helps.  The First Amendment is the the only "poem" here. The Bill of Rights is not a bunch of isolated protections. The Fourth to Eighth Amendments is in effect a series that cover everything from investigation to punishment. The First Amendment factors in the formulation of the laws being enforced there from their creation, the religious and secular [the author argues the Ninth Amendment provides a rule to interpret rights enumerated broadly and by analogy, so the 1A protection of religious free exercise would be expanded to secular conscience] guiding our actions, the press [he argues it is an institutional concern contra some who see the protection as a matter of technology] both informing and checking government etc.

And, the 2A ensures the law and public safety is enforced by a force that includes everyone, not just a special class.  It too is a democratic protection though he favors the "militia" approach while accepting the individual rights argument if the alternative is not to have it mean anything today. Other constitutional provisions are also part of the whole here as well. He thanks Scalia for forcing him to take a close look at the text though also Prof. Akhil Amar, who likewise finds a way to proclaim a respect of the text, as well as an argument that others are missing important things, while finding a lot in there Scalia does not.

The author does this, criticizing various decisions of the Supreme Court etc., often not really showing his work.  Note, e.g., how the "press as institution" approach is debated. One glaring example is the idea that Secretary of State James Madison was arguably a "minister" as that word is used in the original jurisdiction provision, which is news to me. The term to my knowledge is only used here as something that means some sort of diplomatic official. He argues that Marshall's opinion basically gave Marbury no one to go for relief, but only apparently because the local judges that might have authority to rule on his claim were self-interested (either as a Jefferson appointment or Marshall's own brother, who would have to recuse himself ... though unsure why if Marshall himself wasn't given his role in the whole affair!). 

The book repeatedly -- I read a few chapters and then skimmed -- had moments like this.  The focus on "Madison" alone is a bit annoying. He notes in passing or in endnotes little qualifiers here -- like how Madison himself wanted to mix the provisions into the original Constitution and Roger Sherman pushed to have them listed separately. The "music" would be a lot different if Madison's approach was used. Likewise, reference to the importance of the "first" amendment, when MADISON et. al. originally had two other amendments (one that wound up as 27A) first.  Again, BN notes this in passing, but it sort of robs a bit the Madison poetry bit.

The whole result is somewhat garbled, I hate to say, a sentiment expressed since I like the overall idea of the book. Was wary about it in the first place, since such efforts often are somewhat a trudge -- the ideas attractive, but reading a whole book somewhat repetitive and tedious. The book is only a little over two hundred pages plus notes, so that helps, but its brevity is a problem since it is full of conclusionary comments and references (the endnotes helpful here, one paragraph or so eluding to a range of court decisions) that are not self-evident.  The good parts are useful and the rest might be better for the general reader with less familiarity than I, but then, they might not catch some of the problems either. What do I know, right? The book has received accolades from people who studied these subjects much more than I. Then again, I have found some of these professor types lacking at times.  The author would welcome such criticism, surely!

Left with a negative feeling and a belief there are better platforms for this sort of message.  Hopefully, since this one -- though I surely respect the life and career of the author (one who has commented on these subjects for years) -- is flawed. 

No comments:

Post a Comment

Thanks for your .02!