Maybe it’s the nerd in me, but whenever I’ve studied the Bill of Rights, I’ve always wondered why so much is crammed into the First Amendment.
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Establishment of religion, free exercise of religion, speech, press, peaceable assembly and petition of grievances — six ideas, all in one paragraph. Wouldn’t it have had a greater impact to spread things out?
Actually no, because that’s what Burt Neuborne realized when he learned to type. Neuborne is the Norman Dorsen professor in civil liberties at New York University Law School and was the national legal director of the ACLU during the Reagan Administration. As such, he has argued a number of cases before the Supreme Court and has written briefs in at least 200 of them.
In the 1990s, Professor Neuborne’s assistant was forcing him to learn to type on a computer (a story in itself, see the link at the end), so he started practicing on what he knew best — The Bill of Rights.
Tink, tink, tink. When he finally had typed all ten amendments, he decided to practice cutting and pasting. But when he started moving amendments, something seemed very wrong. He realized there was a deep structure to the document; move stuff around and it didn’t work nearly as well.
Perhaps the best example of this is the First Amendment, the one I’ve always wondered about. Professor Neuborne realized those mere 45 words capture the entire life cycle of a democratic idea (the professor’s words are in italics) —
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof [Create a
free space inside your mind to think and believe as you wish. Without that free space, there can be no self-government],
or abridging the freedom of speech [Once you’ve believed and thought something, then then it’s natural for you to want to say it…. if you have an idea formed in the freedom of your mind, by all means go ahead and share it],
or of the press [But that’s not enough… if you really want to make a real dent in a society. So you need some way to be able to speak to a mass of people. To speak in a very loud voice.],
or the right of the people peaceably to assemble [Then, once you’ve gotten your message out to a large number of people, when people have listened to these ideas and moved by them, it’s natural for those people to want to do something about it. To move together, to organize.],
and to petition the government for a redress of grievances [Finally the petition clause, which is the sixth idea — the petition clause says, once you’ve assembled, once you’ve organized — Then you have a right to take your argument to the government… And force the government into confronting it and either accepting it or rejecting it. And then that government, if it says no, is subject to being voted out of office. So this is Madison giving us the blueprint for democracy. The big bang, when democracy begins].
In other words, in the First Amendment, the Founding Fathers didn’t just give us a list of rights — they gave us a plan for democracy. Neat, huh!
The complete explanation, including why Professor Neuborne had to learn to type, is in the podcast of National Public Radio’s Radiolab Presents More Perfect program of September 18, 2018 entitled “The Most Perfect Album — Episode 1” (the title will make more sense once you listen to it) at https://www.wnycstudios.org/story/most-perfect-album-episode-one-first-second-third-amendments .