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.26 It is also what the Court did when it found extratextual exclusionary rules in the Fourth and Fifth Amendments,27 when it inserted an extratextual requirement of proof beyond a reasonable doubt into the Fifth and Sixth Amendments,28 and when it interpreted the Sixth Amendment to include an extratextual right to appointed counsel.29 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.30 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.
Current Supreme Court efforts to read the Tenth Amendment are also stuck at the extremes, only this time the political positions are reversed. Many conservatives read the Tenth Amendment as an open-ended invitation to codify and enforce their subjective vision of American federalism by protecting inherent attributes of state sovereignty (natural law, anyone?) against usurpation by Congress or the president. The problem is that there is no consensus about what counts as an inherent attribute of sovereignty, leaving the Tenth Amendment hostage to whatever political theory about federalism a majority of the justices happen to embrace at any given time. But the alternative modern reading of the Tenth Amendment is also untenable. Liberals, echoing Robert Bork’s “ink blot” approach to the Ninth, argue that the Tenth is simply a political truism, too amorphous to be given effective judicial content. According to them, Madison was just blowing symbolic smoke when he drafted the Tenth Amendment.
Predictably, neither liberals nor conservatives acknowledge the deeply inconsistent nature of their respective cross-readings of the closing amendments. If, however, we respect the structural reasons for placing the Ninth and Tenth Amendments at the close of the document, we see that Madison was neither adopting natural law, inviting judge-made theories of fede
ralism, nor creating meaningless ink blots. Rather, faced with the political need to say something about omitted rights and implied powers, Madison turned the two closing amendments into a brilliant reading lesson. The Ninth Amendment tells us that when omitted individual rights are at issue, we should not be afraid to expand the literal text in favor of freedom, using the disciplined technique of equity of the statute. The Tenth Amendment tells us that when implied government power is at stake, we should do exactly the opposite, limiting the literal grant of powers by invoking inclusio unis.
Once we understand Madison’s poetic Ninth Amendment as authorizing American judges to read the rights-bearing provisions of the constitutional text against the disciplined background of the equity of the statute, it becomes possible for us to recover the rest of Madison’s music embedded in the text of the First through Eighth Amendments—especially Madison’s democracy-friendly First Amendment.
5
Madison’s Music Restored
Recovering Madison’s Democracy-Friendly First Amendment
Democracy has always been beset by an internal contradiction. While the ethos of democracy calls for equal exercise of political power by all the governed, the practice of democracy has tended to exclude the weak and reinforce the strong. The ancient Greeks invented democracy, but the Athenian Constitution parceled out the vote to a fraction of the potential electorate, excluding women, slaves, aliens, and the poor. The Italian and Swiss city-states popularized democracy in the seventeenth and early eighteenth centuries, but the Florentine, Venetian, and Genevois versions of democracy were really government by merchant princes. The British proved that mass democracy could work but did not formally embrace “universal” suffrage until 1884 and even then denied the vote to women until 1918. France didn’t enfranchise women until 1946.
AMERICA’S THREE-TIER DEMOCRACY
Not surprisingly, American democracy began its life in the late eighteenth century by formally denying the vote to the weakest segments of society—women, blacks, Native Americans, and the poor. Most efforts at democratic reform in the United States have concentrated on expanding a narrow formal definition of the franchise. In 1870, the Fifteenth Amendment sought to end racial obstacles to the ballot. In 1920, the Nineteenth Amendment guaranteed the vote to women. In 1964, the Twenty-Fourth Amendment protected the poor by banning poll taxes in federal elections. In 1971, the Twenty-Sixth Amendment extended the vote to eighteen-year-olds in federal elections. Beginning in the early 1960s, a blizzard of Supreme Court opinions wiped out property qualifications and durational residence requirements for voting, and invalidated malapportioned legislative districts favoring rural voters at the expense of urban interests. Only the constitutionally malapportioned Senate, where rural states with about 21 percent of the population can control fifty-one senators, survives. In 1975, Congress barred literacy tests for voting nationwide, overturning a 1959 Supreme Court decision that had unanimously upheld the practice. Enactment and vigorous enforcement of the Voting Rights Act of 1965, as amended in 1982—especially the preclearance requirement of Section 5—finally ended the shameful de facto exclusion of racial minorities from the electorates of the states of the old Confederacy. Let’s hope there is no backsliding now that the Supreme Court has ruled that preclearance is no longer necessary because it has worked so well.
By 2000, therefore, with the important exceptions of ex-felons in a few states, notably Florida and Virginia, and the perennial dilemma of how to provide political representation for long-term resident aliens and children, the formal American electorate finally embraced all of the governed (with the exception of the residents of the District of Columbia, Puerto Rico, and American Samoa), with virtually no legally mandated exclusions.
And yet the age-old contradiction between inclusionary aspiration and its exclusionary reality continues to plague American democracy in the twenty-first century. The rosy formal picture of a universal American electorate masks a darker political reality that resembles the exclusionary electorates of the past. American democracy is currently divided into three tiers of citizens—I call them supercitizens, ordinary citizens, and spectator citizens.
An economically elite top tier of supercitizens, consisting of the wealthiest 1 to 2 percent of the population, wields enormously disproportionate political power. Supercitizens of both parties set the national political agenda, select the candidates, bankroll the campaigns (virtually all campaign contributions and expenditures come from the top 2 percent of the economic ladder), and enjoy privileged postelection access to government officials (whose telephone call does a busy senator take?). Membership in the supercitizen tier is neither defined by law nor confined to the wealthy. It is possible to become a supercitizen on the basis of talent, fame, good looks, family status, inheritance, or sheer persistence. But money gets you in with no questions asked. Likewise, membership in the top tier is not formally confined to white men. Women and people of color occasionally crack the ceiling. But having substantial disposable income for politics is still overwhelmingly a white male prerogative in American society.
A second tier of ordinary citizens consists of the 40 percent to 60 percent of the formally eligible electorate who actually vote. Ordinary citizens navigate among the choices made available to them by supercitizens. After supercitizens have set the table by deciding what issues are worth debating, what campaign speeches are worth funding, and what candidates are worthy of running, ordinary citizens—like jurors in a lawsuit or judges in a beauty pageant—choose among the issues and candidates that have been put before them. Ordinary citizens often wield real power. Choosing between the (usually two) alternatives offered by supercitizens can be important, as long as the alternatives provide a real choice. Often, though, the range of available alternatives is constrained by the relatively homogeneous, economically privileged supercitizen slice of the electorate that formulates them. Moreover, the potential electoral power wielded by ordinary citizens is diluted by widespread political gerrymandering, rendering the outcome of most legislative elections a foregone conclusion.
A third tier, I call them spectator citizens, is made up of the 40 percent to 60 percent of the eligible electorate that does not vote, resulting in an American political reality in which a small economic elite of supercitizens interacts with a second tier of relatively well-off ordinary citizens to produce a form of popular governance that exalts the rich and virtually excludes the poor from political power. Even if the huge mass of nonvoting spectator citizens were a random slice of the population, the existence of such a potentially volatile pool of alienated nonparticipants would pose a threat to American democracy, constituting a proverbial loose cannon just waiting for a demagogue to fire it off. The problem is far worse in the United States than elsewhere, though, because the nonparticipating third tier is not a random slice of the population. Spectator citizens are disproportionately poor, badly educated, and nonwhite.
The unpleasant reality is an American electorate skewed in favor of the powerful, once directly imposed by law but now reproduced indirectly by less obvious means. A century ago, political participation was legally rationed by formal denial of the vote to women, the poor, and newcomers, as well as by de facto prohibitions that prevented blacks and Latinos from voting. Today participation in the democratic process is rationed by the operation of our system of voter registration, election administration, legislative apportionment, and campaign finance, with its capacity to skew available information in favor of the rich. The political rationing system may be less visible to the naked eye, but the effect on the poor and less educated is almost as effective.
The persistence of a disproportionately poor and undereducated third tier of spectator citizens poses an immense moral challenge to American democracy. Most obviously, the consent of the governed is a far less compelling concept when that consent is granted by an electorate that does not reflect the will of the poorest and weakest segments of the society. Less obviously, the feedback interaction betwe
en supercitizens and ordinary citizens is robbed of much of its legitimacy when the feedback is generated by an artificially truncated slice of ordinary citizens that does not reflect the needs and concerns of the weak and the poor. Thus, while formal mechanisms of exclusion have been dismantled, we continue to operate a democracy that significantly overrepresents the rich and under-represents the poor and the weak.
Defenders of the three-tier system tell us that it is the natural result of a series of free choices reflecting individual preferences, abilities, and relative political sophistication. But a three-tier democracy is neither a natural inevitability nor a constitutional given. The first and third tiers are legal constructs, the predictable consequences of ignoring Madison’s music in deciding how to structure American democracy. The economically elite first tier of supercitizens exists only because we have decided to treat the necessary costs of operating a complex democracy as an off-the-books expense to be borne by rich volunteers. By allowing the rich to pay the substantial costs of operating a democracy, we think we are getting something for nothing. In the end, though, we undermine the independence and integrity of the men and women who govern us by turning them into political beggars.
Madison's Music Page 4