The House Resolution was transmitted to the Senate on August 25 and taken up for debate on September 2. Unfortunately, the Senate met in closed session in those days, so we have even less of a record than in the House. The Senate rejected several important pieces of Madison’s handiwork, including the guaranty of conscientious objection to bearing arms and the presence of separate clauses protecting both religious exercise and the rights of secular conscience. The Senate also refused to restrict state efforts to interfere with the crucial rights of religious freedom, free speech, free press, and criminal jury trial and also rejected an explicit separation-of-powers clause. Ironically, every single item that the Senate stripped from the bill of rights ultimately became the law of the land. The Supreme Court has not hesitated to enforce the separation of powers without an explicit textual clause. The right of secular conscience is now constitutionally protected. The states are now bound by the provisions of the Bill of Rights. And Congress has provided for conscientious objection to the military draft.
A blizzard of efforts at other substantive changes failed in the Senate, but the twenty-one senators took their editorial responsibilities very seriously. They carefully edited the language of virtually every House provision, producing the final textual versions of almost everything in the Bill of Rights, except for the final version of the First Amendment and a minor tweak of the Fifth that were hammered out on September 24 in a House-Senate conference committee that included Sherman, Benson, and Madison.
The twelve proposed amendments were submitted to the states on October 2, 1789. Acting through the state legislatures, the people were the final editors of the great poem, excising the two structural provisions dealing with the maximum size of a congressional district and regulating congressional pay raises. Only the ten rights-bearing amendments were ratified. Between November 20, 1789, and December 15, 1791, eleven states—New Jersey, Maryland, North Carolina, South Carolina, New Hampshire, Delaware, New York, Pennsylvania, Rhode Island, Vermont, and Virginia—ratified the Bill of Rights. Georgia and Connecticut—Roger Sherman’s Connecticut—never got around to voting on the Bill of Rights, perhaps because once eleven states had ratified, additional ratifications had no legal effect. In a spate of delayed patriotism, though, both states symbolically ratified the first ten amendments in 1939. Both houses of the Massachusetts legislature apparently ratified the Bill of Rights in early 1790, but never got around to enacting a formal ratification bill. To make sure, Massachusetts also symbolically reratified in 1939.
I don’t suppose that Wallace Stevens or Robert Frost wrote poetry this way. But the result is the remarkable poem to democracy and individual freedom unlike anything the world has ever seen. Thanks to Madison and his friends, where the Bill of Rights is concerned, the house is quiet. The world is calm. And the reader can become the book, if only you’ll try.
NOTES
I have sought to keep notes to a minimum. Cases are cited only when necessary to provide an example of the Supreme Court’s actions. Historical citations are designed to enrich the narrative, not to document it. For those of you seeking more complete notes, many of the themes in this book have been foreshadowed in my recent academic writings, which include: “The House Was Quiet and the World Was Calm,” Vanderbilt Law Review 57 (2004); “Democracy and the Poor,” in Law and Class in America, ed. Paul Carrington and Trina Jones (2006); “The Gravitational Pull of Race on the Warren Court,” Supreme Court Review 2010, no. 1: 59–102; “Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges,” NYU Review of Law & Social Change 35 (2011): 602; “Serving the Syllogism Machine,” Texas Tech Law Review 44 (2011): 1; “Of Singles without Baseball: Corporations as Frozen Transactional Moments,” Rutgers Law Review 65 (2012): 745; and “One State/Two Votes: Do Supermajority Voting Rules Violate the Article V Guaranty of Equal State Suffrage?” Stanford Journal of Civil Rights and Civil Liberties 10 (2014): 27. If you can’t find the note you seek in those sources, I’ll be glad to visit you at home and deliver it.
I owe a debt to two academics whose writing has stimulated my thinking about reading the Constitution’s text. Charles Black’s pioneering efforts to read the Constitution functionally opened my eyes to the possibility of viewing the Constitution as a coherent narrative, and Akhil Amar’s imaginative approach to constitutional text stimulated me to look for poetry in the Bill of Rights. I also owe a debt to Justice Antonin Scalia, whose passionate engagement with the Constitution’s text challenged me to attempt to find a more coherent way of reading our most cherished political document.
2. Why Reading the First Amendment Isn’t Easy
1. The drama surrounding the election of 1800 is described in John Fering, Adams v. Jefferson: The Tumultuous Election of 1800 (New York: Oxford University Press, 2004). The best summary of President John Adams’s use of the Alien and Sedition Acts to stifle his opponents is Geoffrey Stone, Perilous Times: Free Speech in Wartime, from the Sedition Act of 1798 to the War on Terror (New York: Norton, 2004).
2. The widespread imposition of censorship of criticism of slavery throughout the South is described in Michael T. Gilmore, The War on Words: Slavery, Race, and Free Speech in America (Chicago: University of Chicago Press, 2010).
3. Vegelhan v. Guntner, 167 Mass. 92 (1896).
4. Abrams v. United States, 250 U.S. 616 (1919).
5. Debs v. United States, 249 U.S. 211 (1919).
6. Dennis v. United States, 341 U.S. 494 (1951).
7. The classic statement of Justice Holmes’s justification for a robust free-speech clause occurs in his dissent in Abrams 250 U.S at 624–31 (Holmes and Brandeis dissenting). Both Holmes and Brandeis were a little late to the First Amendment party, voting to uphold the convictions and sentences in Schenck and Debs.
8. The classic statement of Justice Brandeis’s justification for a robust free-speech clause occurs in Whitney v. California, 274 U.S. 357, 372–80 (1927) (Brandeis and Holmes concurring).
9. See Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1982).
10. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990): flag burning is protected speech. The voting breakdown was Justices Brennan and Marshall, joined by Justices Scalia, Blackmun, and Kennedy. Chief Justice Rehnquist and Justices White, O’Connor, and Stevens dissented.
11. E.g., Citizens United v. FEC, 558 U.S. 310 (2010): corporations may spend unlimited funds from their treasuries in support of candidates; Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806 (2011), invalidating matching subsidies.
12. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Oxford University Press, 2006).
3. Madison’s Music: Lost and Found
1. It is true, of course, that what we call the First Amendment was originally in third place, preceded by proposed structural amendments setting a limit of fifty thousand on the number of constituents a House member could represent and prohibiting Congress from raising its pay until the next Congress. While both the constituent limit and pay raise amendments preceded the First Amendment, they were both viewed as structural fixes for errors or omissions in the original text. Neither purported to recognize or protect a fundamental human right. I discuss the two structural provisions in Chapter 10.
2. The Fourth through Eighth Amendments provide:
AMENDMENT IV
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched or things to be seized.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land and naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subj
ect for the same offence to be twice put in jeopardy of life and limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.
AMENDMENT VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court in the United States, than according to the rules of the common law.
AMENDMENT VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
4. The First Amendment as a Narrative of Democracy
1. The phrase “city on a hill” is derived from Massachusetts Bay Colony governor John Winthrop’s 1630 sermon “A Model of Christian Charity,” delivered aboard the Arabella immediately before disembarking in the New World. In describing the ideal commonwealth that he hoped to found as a “city on a hill,” Winthrop was echoing language in the parable of salt and light from the Sermon on the Mount, Matthew 5:14.
2. The forty-two rights-bearing antecedents to the Bill of Rights, were:
(1) four British documents: the Magna Carta (1215), the English Petition of Rights (1628), Cromwell’s Agreement of the People (1628), and the English Bill of Rights (1689);
(2) three detailed colonial charters: the Massachusetts Body of Liberties (1641), the Pennsylvania Charter of Government (1682), and the New York Charter of Liberties and Privileges (1683), together with less detailed colonial charters for Maryland (1639), Rhode Island (1663), Carolina (1669—drafted by John Locke, no less), New Jersey (1677), and Pennsylvania (1701);
(3) nineteen Revolutionary-era Constitutions and Declarations: Virginia (1765), Massachusetts (1772), the First Continental Congress (1774), the Address to the Inhabitants of Quebec (1774), the Declaration of Independence (1776), Virginia (1776), Thomas Jefferson’s Draft Virginia Constitution (1776), New Jersey (1776), Pennsylvania (1776), North Carolina (1776), Connecticut (1776), Delaware (1776), Maryland (1776), Georgia (1777), New York (1777), Vermont (1777), South Carolina (1778), Massachusetts (1780), and New Hampshire (1783); and
(4) eleven documents dating from the Founders’ era: the Northwest Ordinance (1787), the United States Constitution (1787), the French Declaration of the Rights of Man (1789), six documents prepared during the ratification debate proposing amendments to the United States Constitution submitted by Massachusetts, South Carolina, New Hampshire, Virginia (North Carolina submitted a verbatim copy of Virginia’s proposed amendments), and New York, and three minority reports seeking amendments from Delaware, Pennsylvania, and Maryland.
3. Madison initially resisted listing our rights in a single poetic document, preferring to intersperse them throughout the constitutional text. It was Roger Sherman who kept insisting on a single, integrated Bill of Rights. I describe the textual evolution of the Bill of Rights in Chapter 10.
4. I discuss the fate of Madison’s conscience clause in Chapter 10.
5. United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970).
6. Buckley v. Valeo, 424 U.S. 1 (1976), invalidating limits on campaign spending and forbidding efforts to limit campaign spending in an effort to equalize political power.
7. Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806 (2011), invalidating Arizona matching-funds campaign subsidy plan.
8. Citizens United v. FEC, 558 U.S. 310 (2010), invalidating a ban on corporate campaign spending.
9. California Democratic Party v. Jones, 530 U.S. 567 (2000), invalidating California’s “blanket primary.”
10. Shaw v. Reno, 509 U.S. 630 (1993), invalidating legislative lines designed to benefit a racial minority.
11. Shelby County v. Holder, 133 S. Ct. 2612 (2013), invalidating pre-clearance provisions requiring advance certification by the Department of Justice that a proposed change in a covered state’s election procedures would not adversely affect black voters.
12. Crawford v. Marion County, 553 U.S. 181 (2008), upholding requirement of voter ID.
13. Vieth v. Jubelirer, 541 U.S. 267 (2004), upholding Republican gerrymander of Pennsylvania.
14. LULAC v. Perry, 548 U.S. 399 (2006), upholding Republican gerrymander of Texas.
15. See Curtis Gans, Voter Turnout in the United States, 1788–2009 (Washington, DC: CQ Press, 2010).
16. Bush v. Gore, 531 U.S. 98 (2000), terminating Florida recount and ensuring election of George W. Bush.
17. In McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014), the justices debated the Supreme Court’s responsibility for the quality of the democracy their decisions have built. Chief Justice Roberts, writing for the Court’s Republican majority, argued that the quality of the resulting democracy was not the Court’s problem. Justice Breyer, writing for the four Democratic dissenters, argued that ensuring the quality of the democracy is an important aspect of the Court’s work.
18. The Third Amendment seeks to protect robust democracy against suffocation by military occupation, as opposed to armed overthrow. Fortunately, we have had no occasion to invoke it.
AMENDMENT III
No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
19. The body of the 1787 Constitution sought to minimize the danger of armed subversion by limiting military appropriations to two years, forbidding military officers from serving in the government, appointing a civilian, the president, as commander in chief of the armed forces, and eliminating the executive’s unilateral power to declare war.
20. District of Columbia v. Heller, 554 U.S. 570 (2008).
21. Mapp v. Ohio, 367 U.S. 643 (1961).
22. Miranda v. Arizona, 384 U.S. 436 (1966).
23. In re Winship, 397 U.S. 358 (1970); Gideon v. Wainwright, 372 U.S. 335 (1963).
24. The nineteenth-century Supreme Court took a more holistic view of the criminal procedure amendments, e.g., in Boyd v. United States, 116 U.S. 616 (1886). Alas, Boyd has been abandoned by the modern Court. Fisher v. United States, 425 U.S. 391 (1976).
25. The history of “equity of the statute” is recounted in James M. Landis, “Statutes and the Sources of the Law,” Harvard Legal Essays (1934); Ivor Jennings, “Courts and Administrative Law: The Experience of English Housing Legislation,” Harvard Law Review 49 (1936): 426. For a more skeptical modern view, see John F. Manning, “Textualism and the Equity of the Statute,” Columbia Law Review 101, no. 1 (2001): 1.
26. NAACP v. Alabama, 357 U.S. 449 (1958).
27. Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966).
28. In re Winship, 397 U.S. 358 (1970).
29. Gideon v. Wainwright, 372 U.S. 335 (1963).
30. United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970).
5. Madison’s Music Restored
1. Baker v. Carr, 369 U.S. 186 (1962).
2. Baker, 369 U.S. at 266–330, Frankfurter, J., dissenting. See also Colegrove v. Green, 328 U.S. 549 (1946).
3. Article IV, section 4 provides: “The United States shall guaranty to every state in this Union a Republican Form of Government.”
4. The Equal Protection Clause of the Fourteenth Amendment provides: “No state . . . shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”
5. Baker v. Carr, 369 U.S. at 368, Harlan, J., dissenting.
6. The Supreme Court ruled in 1844 that it lacked power under the Republican Form of Government Clause to decide which of two competing factions constituted the legitimate republican government of Rhode Island. Ever since, the Court has treated the clause as a judicial dead letter.
7. The origins of the Twelfth Amendment are discussed in Chapter 10.
8. See Minor v. Happersett, 88 U.S. 162 (1874), denying the vote to women; Giles v. Harris, 189 U.S. 475 (1903) (Holmes, J.), denying the vote to blacks.
9. Ex parte Yarbrough, 110 U.S. 651 (1884), conspiring to use force to prevent blacks from voting punishable as a federal crime; Guinn v. United States, 238 U.S. 347 (1915), invalidating racially discriminatory literacy tests; Nixon v. Herndon, 273 U.S. 536 (1927), striking down a Texas statute forbidding blacks from voting in primary elections.
10. Carrington v. Rash, 380 U.S. 89 (1965).
11. Harper v. Board of Elections, 383 U.S. 663 (1966).
12. Williams v. Rhodes, 393 U.S. 23 (1968).
13. Kramer v. Union Free School District, 395 U.S. 621 (1969).
14. Dunn v. Blumstein, 405 U.S. 330 (1972).
15. Lassiter v. Northampton Bd. of Elections, 360 U.S. 45, 51–53 (1959).
16. Richardson v. Ramirez, 418 U.S. 24 (1974).
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