Caitlyn McBride

November 19, 2015

Neuborne Essay
US Civil Liberties Prof. Tolley
Let Freedom Ring? Madison Already Wrote the Tune
Despite the US Constitution and Bill of Rights coming into existence over 200 years ago,
debate over meanings, intentions, and correct applications still occur today. Often at the center of
these debates are the US Supreme Court and its esteemed justices, tasked with interpreting the
language of the constitution and charged with final judgement as the highest court in the US. The
Bill of Rights serves as a protector of individuals rights from government abuses, establishing an
environment in which the democratic process grows and thrives. Granted, the system is not
perfect. However, various amendments and legislative actions have helped to evolve American
society into a more perfect union as intended by the Founders. Since the first ten amendments
were ratified, a great deal of precedent has also emerged from an empowered and independent
court system. The most important legal decisions flow from the Supreme Court, serving as the
interpreter of our nations most important document. Neuborne outlines an interesting new
approach in his new book, Madisons Music, to constitutional interpretation that deserves
consideration for inclusion in justices toolboxes. His approach to how to read the Bill of Rights
places the democratic process squarely into the courts realm of protection, a position that
protects individuals ability to influence their government in meaningful manner.
Neubornes argument centers on the idea that the Bill of Rights is intended to be read as a
complete package. He equates the first ten amendments of the US Constitution to a great literary
poem, capable of invoking feelings and alluding to larger meanings. He opines that American
judges are expected to resolve cases by pigeonholing them into one or another formal legal
categoryhaving nothing intrinsic to do with the quality of democracy. (Neuborne 2015) The
various formal legal categories not only split the amendments from one another, but also parse

ideas and rights out from within a single amendment. In doing so, the justices lose sight of the
document as a whole, getting themselves stuck in the weeds of interpretation. This creates an
opportunity for the greater purpose of the constitution, to protect our democracy and its citizens,
to fall from discussion. People do not question the importance of reading a book from cover to
cover, listening to all the lyrics of a song, or watching an entire movie in order to understand the
themes and messages embedded by authors. Essentially, Neuborne believes a document of
immense importance, like the Bill of Rights, should be afforded the same opportunity to speak to
its audience.
In reading the Bill of Rights as a whole and following the assumption that each
amendment and phrase is placed intentionally, Neuborne argues that a blueprint for democracy
emerges. He views this as an inherently unique and powerful feature that sets the US
Constitution apart from other nations governing documents. Looking specifically at the First
Amendment, the order of its enumerated rights arguably follows the political process. Beginning
in an individuals mind and religious consciousness, an idea is developed, shared through speech,
disseminated by the press, supported collectively, and finally brought formally into consideration
by the government through petition. (Neuborne 2015) Following this interpretation of the First
Amendment, no dead letters exist and no right is weightier than another.
More broadly, the Bill of Rights as a whole can be read as a protector of democracy. In
looking past the First Amendment, there are protections against the military powers of the
government. This is followed by a series of amendments dealing with the criminal process.
Again, Neuborne sees each of these amendments placed chronologically, moving from
investigation all the way through adjudication and punishment. Finally, the Bill of Rights
concludes with the acknowledgement that not all rights are enumerated and that additional

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governmental powers should be afforded narrowly. (Neuborne 2015) This interpretation certainly
serves our general preference for logic and order and Neuborne puts forth a compelling argument
for reflecting on the amendments in this way. If so much time, effort, and debate went into each
idea, word, and punctuation mark contained in the Bill of Rights, it is difficult to defer merely to
randomness and coincidence in explaining the presentation of the Bill of Rights.
According to Neuborne, the Supreme Court justices and other American judiciaries have
failed to unlock this poetic potential of the Bill of Rights. Instead, he claims for more than
fifty years Supreme Court justices operating inside doctrinal silos have shaped the quality of
American democracy without once asking what kind of democracy they were building.
(Neuborne 2015) He concludes that many of the troubling and threatening aspects of our
democratic system are fostered by misguided Supreme Court decisions. His most poignant
examples are in the highly contested areas of campaign finance, vote equality, and speech
governance.
Neuborne strongly believes that the Supreme Court has allowed a One Dollar, One Vote
system to develop under its nose. He argues that this has happened as a result of focusing too
narrowly on the literally definitions of speech, association, and other First Amendment verbiage.
This has allowed for cases like Citizens United v. FEC (2010) to flood campaigns with capital. In
addition, he points to cases where governments attempts to make funding more equitable
between candidates have been struck down as a violation of individual and corporate rights to
free speech. Neuborne sees this environment as flawed because, for freedom to prevail, there
must be a free market for speech. Since, in his opinion, this free market does not exist, the
Supreme Court has essentially aided majority interests in overshadowing minority voices.

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Considering democracy thrives when minorities are properly represented, this evaluation of the
consequences of Supreme Court campaign finance cases is certainly concerning.
Furthering his analysis of modern American democracy, Neuborne expresses immense
concern over a fundamental bastion of democracy: voting. He feels very strongly that the
Supreme Court failed to recognize a fundamental right to vote when it rejected the idea that
voting is a First Amendment-protected exercise of political expression and association, viewing
the casting of a ballot as nothing more than an instrumental means of choosing a public official
to govern. (Neuborne 2015) According to his approach, it would be simple to find the right to
vote within the First Amendment considering that its purpose is to protect the democratic
process.
However, the Supreme Court instead chose to deny a right to cast a vote for anyone,
whether in protest or earnest, if they are not a formal candidate. Neubornes skepticism of
American voting standards continues with his review of Supreme Court precedent that appears to
fail in equating every individuals vote. Preservation of minority majority districts, representation
blind to population like in the Senate, and a primary process that defaults to party leadership
through denial of wider participation represent threats to the value of an individuals vote.
The final aspect of society drawing Neubornes ire in relation to judicial precedent is
speech governance. Referencing decisions where, in Neubornes opinion, the Supreme Court
decided to borrow the rights of tomorrows speakers in order to protect todays and struck
down legislation that outlawed speech lacking social value. (Neuborne 2015) He feels this is
directly caused by an interpretation of merely the phrase free speech rather than the entire First
Amendment. Using his framework for analysis, the First Amendment is still very strong, but
leaves room for a greater degree of speech governance of acts like crush videos and protests at

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soldiers funerals. This is a very interesting point because it steers focus from an individuals
right to say whatever they wish to a consideration of who they are intending to address, how they
are doing it, and who else has to endure the speech act. Those actors all are members of
Neubornes neighborhood analogy and are somehow left out of consideration by the current
interpretation of the First Amendment.
I agree with Neuborne that the Supreme Court interprets the Bill of Rights with blinders,
sometimes losing sight of greater democratic ideals. In the end, the purpose of the Bill of Rights
is to help our democracy function properly by ensuring individuals have adequately protected
rights that allow them to think, plan, and act. Originalists tout the importance of discerning the
Founders intent regarding the meaning of individual words analyzed in solitude, so it is not too
much of a logical jump to examine the document as a whole. If Neubornes approach was a
recognized tool for constitutional interpretation, a broader inquiry would undoubtedly be made
by the Supreme Court to discover the broader ideas the Founders placed between the lines
because they did not have or could not find the words. In my opinion, the US Constitution is
meant to be a living document that grows and evolves with its people. In this spirit, broader
themes are more translatable to modern times than reflection upon antiquated phrases and
standards.
However, my opinion is more tempered than Neubornes position in that I feel his
strategy for interpretation is valid, but should not be so quick to discount other methods. To me,
our prized democracy is not as fractured as he postulates throughout the book and the Supreme
Court has enjoyed many redeeming moments, issuing decisions that shaped our democracy in
positive ways. His analysis of the democratic process left him stating that the nomination is
rigged by party bosses, the general election is gerrymandered into insignificance, third parties

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have been strangled, and you cant even cast a write-in protest vote. (Neuborne 2015) I find
this characterization to be slightly exaggerated. Personally, I look to the cases of Texas v.
Johnson (1989) and Cohen v. California (1971) as examples of the Supreme Courts other tools
of constitutional interpretation leading the justices to protect political expression. Despite being
unsavory to most Americans, the Supreme Court decided to protect the minority interest and
keep the avenue for popular dissent open for participation.
Flag burning is an act I find personally offensive, as do countless other Americans. Texas
and most other states found it repulsive enough to outlaw it legislatively. However, as an act of
protest it is also very powerful. The flag is ultimately a nationalistic image that pledges our
allegiance to the US government. Those who strongly disagree with the governments
fundamental design and principles can logically see the flag as an effective means of protest.
Plus, it certainly gains attention and elicits reactions. In this case, the Supreme Court reminded
the country that the right to make statements against the government outweighs any interest in
preserving the physical integrity of a few flags. The justices came to this interpretation of
communicative conduct protection without directly recognizing its need for protection as part of
the political process.
The Supreme Court came to a similarly principled decision in the case of offensive (but
political) clothing in a courthouse. If Cohen had been examined through the lens of Neubornes
neighborhood analogy for speech, it could be interpreted as placing a burden on the hearers of
the speech, which would be the people in the courthouse. Although offensive, the jacket posed no
threat to anyone and merely expressed Cohens intense disdain for the draft. In these two cases,
an interpretation that is too idealistic would detract from the traditionally black and white
guidance that the legal system is designed to provide.

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If the neighborhood would have been consulted, the decisions could have been more
restrictive when clearly neither case posed any real danger to the public. Neuborne addresses this
concern by caveating that the hearers would not be so weak and malleable, and he also looks
to these two cases as examples where this issue would arise. (Neuborne 2015) However, I find
that as a guiding legal principle it is often difficult to add caveats to assumptions. Gradually, the
approach becomes more complex and then it becomes difficult to discern a pattern in decisions.
If Neubornes approaches to interpretation are going to stand the test of time, they will need to be
clear and widely implementable.
I question whether his approach is any better in inspiring consistency in the Supreme
Court than existing methodologies because it is not less subjective. There is little explanation as
to how Neubornes approach would rule differently between Johnson, Snyder v. Phelps (2011), or
RAV v. City of St. Paul Minnesota (1992) other than the characterization of the hearer. Defining
characteristics of the members of the neighborhood is inherently subjective. A majority of the
country would agree with his characterization, but certainly, the protestors would not. Ultimately,
the justices would make a subjective determination of appropriateness: flag burning is allowed,
but cross burning is too large a burden for the hearer to bear. This is not necessarily a negative
thing, however it is more subjective and restrictive than current approaches strive to be.
It would be too idealistic to assume that an institution such as the Supreme Court can ever
be infallible. Therefore, it is just as important to examine its misguided decisions as it is to
recognize that, at the time, the decisions were valid interpretations of the US Constitution.
Neuborne points to his new approach to reading the Bill of Rights as a way to correct the
shortcomings of current approaches like originalism, history, and philosophy. (Neuborne 2015)
He writes about returning to the roots of the Bill of Rights and of democracy more generally. In

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light of the current state of campaign finance, voting systems, and, to a certain extent, speech
governance he feels the Supreme Court has fallen victim to blinders that have led it (and, by
association, US citizens) astray. This leaves us in a less perfect democratic system than is
reasonably attainable. I believe his new approach deserves a place in the judicial toolbox, but
also maintain that many other good aspects of our political process owe their protection to
traditional interpretation methods. Therefore, Neubornes quest to infuse Madisons long lost
poetic tune into modern constitutional interpretation methodology can act as a beacon for
Supreme Court justices, reminding them that a larger purpose exists: defense of citizens rights
and their ability to operate within a democratic system.

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Works Cited
Epstein, Lee, and Thomas G. Walker. 2013. Constitutional Law for a Changing America: Rights,
Liberties, and Justice. 8th. CQ Press.
Neuborne, Burt. 2015. Madison's Music: On Reading the First Amendment. New York: The New
Press.

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