Burt Neuborne, left, Sonia Sotomayor, and Trevor Morrison

Madison’s Music: On Reading the First Amendment, a new book by Burt Neuborne, offers a fresh argument about how the structure of the First Amendment reveals a blueprint for the democratic process and thus must be read holistically, striking a blow against originalist interpretation. The book’s ideas were intriguing enough to draw US Supreme Court Justice Sonia Sotomayor to NYU School of Law, where she engaged with the author and Dean Trevor Morrison on March 13.

Neuborne, Norman Dorsen Professor of Civil Liberties, thanked Sotomayor for “her human voice that is heard on the Court and in the public square” before summarizing for the audience the argument of Madison’s Music, beginning with some context for his pursuit of the topic.

“When I began as a young lawyer in the 1960s, text was an interesting jumping-off point,” said Neuborne. “It was sometimes even read from beginning to end. But it was rarely dispositive…. One of the great triumphs of Justice Scalia’s work on the Court over the years—with help from a number of the other justices—was to remind us that text does play an important role, and that we should be spending more time with the text.”

Neuborne, a leading civil liberties lawyer, naturally decided to apply that idea to the Bill of Rights. He soon determined that the First Amendment should not be read literally, parsed word by word, but must be instead understood as a complete entity outlining the evolution of a citizen’s idea from free speech to legislative reality. He drew an analogy between the structure of the Bill of Rights and a musical composition.

Sotomayor offered praise for Madison’s Music. “It’s a fun book for someone who’s not immersed in the law,” she said. “Just as he’s clear here, his book is clear as well. It’s so well written that I heard Burt’s voice in my head as I was reading it. I consider that the highest of compliments to an author.”

The justice proceeded to question Neuborne on a number of points, including whether, if the First Amendment is a structure for democracy, it applies only to political speech, as some past justices have held, and whether Neuborne believed in different standards of scrutiny for different kinds of speech. Morrison asked what a Madisonian approach to the Second Amendment would look like.

Sotomayor pressed Neuborne particularly on the adjudication of democracy. “You say that the focus of the First Amendment is democracy,” she said. “You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

“I’m sort of shocked that you asked that, because it’s clear that I define it,” said Neuborne jokingly, to audience laughter. But Sotomayor prevailed with the wry rejoinder, “No, no, no, you forget, I do,” prompting an eruption of mirth and applause.

Turning to the justice’s question, Neuborne referred to an exchange between Chief Justice John Roberts and Justice Stephen Breyer in McCutcheon v. Federal Election Commission, which invalidated federal campaign contribution limits for individual donors on First Amendment grounds. In Breyer’s dissent, he argued the ruling was a blow to democracy, while Roberts responded that the Court’s business was merely to enforce the First Amendment, and better democracy could be obtained through amending the Constitution.

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” said Neuborne. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean—‘Congress shall make no law abridging speech’—and having it be sort of automatic, without even thinking about the consequences for democracy.”

Watch the full video of the event (1 hr, 10 min):

Posted March 17, 2015