What if most of what we think we know about reading the text of the First Amendment is just wrong? For years, the Supreme Court has treated the First Amendment like a laundry list of isolated words, stopping every once in a while to pull a couple of words out of the full text and claiming to be able to use the artificially isolated words as an infallible guide to what the First Amendment really means. In Madison's Music, Burt Neuborne argues that the Supreme Court has gotten the actual text wrong. If judges would only look at the First Amendment’s full text—all forty-five words—they would discover Madison’s music, a First Amendment that is democracy’s best friend. The discussion was moderated by Jeffrey Rosen, the President and Chief Executive Officer of the National Constitution Center, the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution.
Neuborne, who was the national legal director of the ACLU during the Reagan presidency and has argued many cases before the Supreme Court, explains that the remarkably disciplined order and structure of the ideas in Madison’s forty-five-word First Amendment—beginning with freedom of conscience in the religion clauses; moving on to freedoms of speech, press, and assembly in that order; and ending with freedom to petition for redress of grievances—tells the story of democracy in action. Madison’s music, he argues, is the chronicle of a democratic idea conceived in the free conscience of a free citizen, articulated by a free speaker, disseminated widely by a free press, turned into a political movement by freely assembled people, and enacted into law through the petition clause. No other rights-bearing document, beginning with the Magna Carta in 1215, comes close to such a careful narrative of democracy in action. Neuborne argues that the Supreme Court’s misuse of what he calls “an imperial Free Speech Clause” to blot out Madison’s democratic music has led to an arbitrary First Amendment that turns democracy over to hugely wealthy individuals and corporations, encourages cynical officials to disenfranchise the weak, and allows politicians to manipulate the system to stay in power. Recovering the ability to hear Madison’s music, he argues, is the first step to reclaiming our democracy for everyone—not just the rich.
Burt Neuborne is the Inez Milholland Professor of Civil Liberties and founding Legal Director of the Brennan Center for Justice at NYU Law School. For 50 years, he has been one of the nation's foremost civil liberties lawyers, serving as National Legal Director of the ACLU from 1981-86, Special Counsel to the NOW Legal Defense and Education Fund from 1990-1996, and as a member of the New York City Human Rights Commission from 1988-1992. He has argued numerous Supreme Court cases, and has litigated literally hundreds of important constitutional cases in the state and federal courts. He challenged the constitutionality of the Vietnam War, pioneered the flag burning cases, worked on the Pentagon Papers case, worked with Justice Ruth Bader Ginsburg when she headed the ACLU Women's Rights Project, anchored the ACLU's legal program during the Reagan years, and defended the Legal Services program against unconstitutional attacks. From 1995 to 2007, he directed the legal program of the Brennan Center, focusing on efforts to reinforce American democracy and secure campaign finance reform. The Brennan Center was established in 1994 to honor Justice William Brennan, Jr.’s monumental contribution to American Law.
At the same time, Professor Neuborne has forged a national reputation as a constitutional scholar and teacher. In 1990, he was the recipient of the University-wide Distinguished Teacher Award at New York University for his work in teaching Civil Procedure, Evidence, Federal Courts and Constitutional Law. He is the author of three books and over 20 law review articles on diverse areas of constitutional law and procedure. Among his best known scholarly works is the two-volume Political and Civil Rights in the United States, which he co-authored with NYU colleagues Norman Dorsen and Sylvia Law and the Deputy Solicitor General of the United States, Paul Bender. His 1992 lectures on American law at Universitat Pompeu Fabra in Barcelona have been translated and published in Spanish. In 2001, in recognition of his scholarship and his work in the courts, Professor Neuborne was elected to membership in the American Academy of Arts and Sciences. In 2012, Professor Neuborne delivered nine Jay Iselin memorial lectures at Cooper Union on the American constitution. Portions of the lectures will appear in book form next year as "Madison's Music: On Reading the First Amendment."
In 1996, Professor Neuborne appeared as Jerry Falwell's lawyer in Milos Forman's The People v. Larry Flynt.
For the past 14 years, Professor Neuborne has served as a principal counsel in a series of lawsuits seeking to recover property unjustly taken from Holocaust victims by Swiss banks and German corporations during the Nazi era. The litigation has succeeded in assembling more than $8.5 billion for distribution to Holocaust victims and their families throughout the world. Professor Neuborne was appointed by the Court to oversee the $1.25 Swiss bank settlement, and was appointed by the United States to serve on the Board of Trustees of the German Foundation “Remembrance, Responsibility and Future,” established to distribute the $5.2 billion settlement in the German slave labor litigation.
Professor Neuborne is married to Helen Redleaf Neuborne.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. He is a professor at The George Washington University Law School, where he has taught since 1997. He is a nonresident senior fellow at the Brookings Institution, where he explores issues involving the future of technology and the Constitution. He has recorded a lecture series for the Teaching Company’s Great Courses on Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century.
Rosen is a highly regarded journalist whose essays and commentaries have appeared in the New York Times Magazine, The Atlantic Monthly, on National Public Radio, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the 10 best magazine journalists in America and a reviewer for the Los Angeles Times called him "the nation's most widely read and influential legal commentator.” He received the 2012 Golden Pen Award from the Legal Writing Institute for his “extraordinary contribution to the cause of better legal writing.”
Since 2000, he has served as a moderator at The Aspen Institute, an educational and policy studies organization with a mission to foster leadership based on enduring values and to provide a nonpartisan venue for dealing with critical issues. At Aspen, Rosen moderates panels and conducts seminars on technology and the Constitution, privacy, and free speech and democracy.
He is the author of several books including The Supreme Court: The Personalities and Rivalries that Defined America; The Most Democratic Branch: How the Courts Serve America; The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age; and The Unwanted Gaze: The Destruction of Privacy in America. His most recent book, as co-editor, is Constitution 3.0: Freedom and Technological Change. Books about Supreme Court Justice Louis Brandeis and President William Howard Taft are forthcoming.
Rosen is a graduate of Harvard College; Oxford University, where he was a Marshall Scholar; and Yale Law School.
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