Constitutional expert Neuborne (Civil Liberties/New York Univ. Law School; Building a Better Democracy: Reflections on Money, Politics and Free Speech, 1999, etc.) offers a cogent critique of America’s “highly dysfunctional political system,” abetted by Supreme Court interpretations of the Bill of Rights, especially the First Amendment.
Likening James Madison’s 45-word text to a poem, the author examines the words, phrases, cadence and order to argue that it presents “a coherent narrative of democracy instead of a series of unconnected commands.” Madison’s sequence of six points begins with individual conscience (ensuring no prohibition to “free exercise” of religion), follows with “three ascending levels of individual interaction with the community—free expression of an idea by an individual, mass dissemination of the idea by a free press, and collective action in support of the idea”—and, significantly, affords the right “to petition the Government for a redress of grievances.” Neuborne asserts that the Supreme Court, taking phrases out of context, has promoted a division among the electorate into “three tiers of citizens…supercitizens, ordinary citizens, and spectator citizens,” empowering the enormously wealthy to set the political agenda, choose candidates and bankroll campaigns. Gerrymandering, a vice of both parties, has made genuinely contested elections impossible; third parties are quashed; arcane voter registration requirements suppress voting. The author excoriates the court for its Citizens United decision, which gives corporations the same rights as people: “A robot has no soul. Neither does a for-profit business corporation. Vesting either with constitutional rights premised on human dignity is legal fiction run amok.” Neuborne suggests public funding of elections and urges revisions of voter registration procedures to boost turnout from the lowest in the democratic world. Most importantly, he calls for judges to understand the First Amendment’s intent to ensure democracy for all rather than only the powerful few.
An urgent message that deserves a wide readership.