We actually gave out an award to the person who did the most working at the least credit. When i left i was legal director, when i left to come back to nyu the louisiana affiliate a strong and courageous affiliate decided that they would give a party for me. I went down to baton rouge for a lovely dinner and the speech. Im sitting there waiting to be introduced. The director of the affiliate want to Say Something nice. I just want to know that im introducing you to the men who used to be bird newborn. [laughter] so it is not everyday you get to thank free of the most important people in your professional life on a single platform before an audience of family and your friends. As john intimated, the single most productive vote i i ever cast is back in 1971 when i was chair of the community to hire john as he i member of the nyu law faculty. As we all know, he went on to serve as a transformative dean at nyu before assuming the presidency of the university we owe john a special debt for his Important Role in helping the law school become a preeminent center of Legal Education and legal study. I hold him in a personal debt, the the kindness that he showed to me and my family at a time of great need. John we cannot wait to have you back. I look forward to seeing you here is a friend and as the Benjamin Butler professor of law. Dean Trevor Morrison is the 15 that i have served under whom i have served in my 41 years here. I have respected them all but none more than trevor. His enthusiasm, openness commitment, and intellectual energy make me very confident about my next 41 years. Norman, my dear friend and mentor has guided has guided, inspired for work sidebyside with me from most 50 years. The wise and thoughtful leader of the aclu and as nyu law 1st citizen for more than 50 years his intelligence, strategic sense, and superb judgment have contributed mightily to building to institutional houses for which i had lived most of my professional career. I can attest from experience when he builds an institution that he works on the roof does not leak. He persuaded me by an extraordinary or of argument you presented in the Second Circuit and a challenge to the constitutionality of the war in vietnam. I cannot get anyone to take the argument seriously. Would you put your reputation online by standing up before the Second Circuit and actually making an argument that this is a possible an important legal proposition. And in the source of authority fiveminute oral argument before the Second Circuit turned what was a french argument that was getting no intellectual traction anywhere into a real mainstream argument that eventually resulted in an injunction and trip to the Second Circuit of the Supreme Court several years later. As we left the building i said, that was extraordinary he turns to me and said, said, you can do that too. Teaching is what you should think about. I remember i remember as well norman in 1973 persuading as skeptical Personnel Committee headed by peers am wrong to give me a chance to be a a teacher and i will never forget the kindness and the help that he has provided me in my career. As the professor and Civil Liberties came into the lifelong dream. It is an honor that i accept recognizing that it carries with it great responsibility. I we will try to be worthy of the honor. Be sure to let me know if i fall short. No set of a truck through remarks are possible without acknowledging my remarkable wife who has been my beloved partner to my principal supporter, and my chief critic since we met as undergraduates at cornell more years ago than either of us cares to admit or will reveal. Studying, teaching, and writing about the bill of rights, especially the First Amendment has been my principal professional application for more than a halfcentury. I have watched, participated i have watched, participated command for the most part cheered as the modern Supreme Court beginning in the 1960s and early 1970s forged the most robust free speech clause in the nations history. Norman played an Important Role in kickstarting the modern free speech clause by writing the aclu brief, the brief, the case that established the modern analytic parameters for the First Amendment claim and playing a major role in the victory that established the primacy of the value of free speech in our legal culture. Culture. I applaud those cases and salute the Supreme Court for making free speech that cornerstone of american law. Why then is it my talk tonight and unqualified celebration of the emergence of free speech and a free speech clause far more powerful. It is, i believe provides deep textual and structural madison democracy. We should remember what the First Amendment is. Is. It cant be letter is to have literally. Say nothing of the 4th word in the crucial term plan of which have a literal meaning and cannot be read historically at least if we want a robust free speech principle. Think was not dry on the First Amendment when john adams locked up most of the newspaper editors who opposed his reelection. Reelection. The truth is, for most of our history we have had a relatively feeble First Amendment. Nor can it be read philosophically. Neither the free market and idea metaphor, Justice Brandeis a celebration of Human Dignity or the modern mistrust of government provide a a wholly satisfactory roadmap for how to read the First Amendment. The free market and ideas metaphor breaks down because speech markets are never free. They require resources and the rich have more power than the port and also the decency does not always win out in the struggle of ideas. The perennial curse the failure to be able to deal with gender inequality the continued existence of racism the religious intolerance that plagues us throughout the world. These stand as testimony to the fact that recent argument does not always cause good things to happen. Sometimes the free market and ideas will fail. Often because it is not a free market all. The dignitary and the dignitary and justification for free speech cant explain corporate speech. Corporations dont have dignity. They have lots they have lots of other things, but not dignity. They can pray but they cant pray. [laughter] and the dignitary justification overlooks the fact that speakers are not the only folks with Human Dignity. What about targets and the other folks in the neighborhood simply invoking the principle of dignity does not say which person should have what and how much. Fear of government while important leads to a deadend and end a real nihilistic sense that nothing can be done. Not done. Not only that, it cannot explain the miracle of Public Education. If we mistrust government so much that we know hello to interfere how can we explain the fact that we have maintained the Public Education system for many years that has produced generation after generation of citizens that have been taught to think freely. If you want to see intellectual carbon copying, if you want to see xerox machines in action go to private schools. That that is where you see the exclusive domination of a particular ideal. Public education has been much more successful and it stands as a reputation of the fact that government always fails or government we will always sensor. How does the modern Supreme Court read the First Amendment . Unfortunately, instead of seeking to read the 45 words of 45 words of James MadisonsFirst Amendment, the six textual clauses, punctuation and all is a coherent whole that should function as democracies best friend the majority of the Current Court tears ten words, Congress Shall make no law abridging the freedom of speech for the First Amendments full 45 word text, discards three untidy words, the freedom of as an inconvenient manmade legal concept that requires us to think a little too hard about what should be inside or outside the freedom of speech and reads the remaining seven words as though the entire First Amendment read Congress Shall make no law abridging speech. The resulting constitutional command is immensely powerful but ultimately fruitless First Amendment that mandates the deregulation of virtually all efforts to deal with the processes of communication without accepting any judicial responsibility that the institutional consequences of wholly unregulated speech. Today we live under an imperial seven word free speech clause that redoubled its deregulatory efforts long after it has lost sight of its madisonian goals. For example, in a series of First Amendment opinions beginning in 1976 with buckley versus valeo i have to confess with you here i signed the brief. Beginning in 1976 with buckley versus valeo which held that spending an unlimited amount of cash to influence an election is a form of pure speech from effective government regulation and accelerating since 2,000 with decisions like Citizens United granting free speech protection to a huge for profit corporations seeking to leverage massive economic power into election control and mccutchen versus the fcc holding that the free speech clause assures the ultrarich the power to contribute as much money as they want to sway the acoma acoma National Outcome of a National Election as lawyers this per the contributions around. The Supreme Court has contacted the seven words as rendering it impossible to deal effectively with the corrosive role of a commodity on american democracy. The court has even gone so far as to invalidate Public Financing schemes like arizonas that use matching funds to seek to allow poorly funded candidates to match the Campaign Spending of wellheeled candidates. Matching campaign subsidies unconstitutionally penalizes the First Amendment right of the rich to spend as much money as they wish to win an election. As a result instead of a the madisonian dream of a well functioning egalitarian democracy we live today in a judge may put argosy of 1. 01 vote, a badly weakened democracy where the Supreme Courts rootless reading of the seven words in the free speech clause assures the ultrarich the power to dominate our electoral politics where legislators are expected to favor their large contributors rampant partisan gerrymandering to sports supports the fairness of government will virtually eliminating genuinely contestable legislative elections from american political life. Fewer than half the eligible electorate actually votes 38 , 38 percent voted in the most recent 4014 elections the lowest turnout since 1942. And in new york state and 19 percent turnout in the Gubernatorial Election and where senates seek partisan advantage by placing hurdles in the path of the week in the poor when they try to vote and packed large numbers of black and hispanic voters into socalled safe minority district designed to waste their votes in an election that never was in doubt. The sad truth is that forced to operate under the harsh tutelage of her rootless free speech clause american democracy functions. The top 1 percent or the economic tree 5000 american oligarchs exercise massively disproportionate power over our elected lives and the rest of us endure we must. It does not have to be that way. The music of a functioning madisonian democracy madisons music is present in the fulltext of madisons First Amendment if only we will take the trouble to recover the ability to your. Today we here only scraps of madisons music. The Supreme Court reads read the First Amendment, indeed the entire bill of rights a set of isolated words and phrases as though the founders through a part a part of income the wall and allow the splatter to dictate the order and structure of our most important political text. The current Supreme Court majority relies on a truncated seven word imperial free speech clause that is this a rates the independent role of the press clause, the assembly clause, and the petition clause in madisons careful textures. The court never asks why madison begins the bill of rights with the First Amendment to why he begins the First Amendment with two religion clauses establishment and free exercise that appear to. Different directions. The court does not ask why the crucial free speech clause is in 3rd place and why press, assembly and petition follow in that order. The relationship of the seven judge made nontextual First Amendment non textual First Amendment right freedom of association to the six textual ideas is never even considered nor is the question of whether other nonsexual First Amendment rights like the right to vote hiding in plain sight in the white spaces of the First Amendment just waiting to be discovered. Similarly, the court does not ask where the 2nd amendments right to bear arms immediately follows after the iconic First Amendment or why the criminal procedure amendments of four through eight are ordered as they are. Why is the 4th amendment 4th and immediately before the 5th . Why does the 6th follow the 5th and why does the 8th amendment and the criminal procedure parade . Finally, finally, we do not ask why madison closes the bill of rights his great form to freedom and democracy, with a tantalizing 9th amendment that holds out the promise of recognizing new nonsexual rights and an austere 10th 10th amendment that freezes government powers at the level of text. In short, in 21st Century America despite our newfound preoccupation with the importance of legal text and despite the emergence of an immensely powerful free speech clause i feel i feel we have lost the ability to use the department is that emerges from the order and structure and organization of the bill of rights all 462 words with not an idea or cause other place. Very very briefly the First Amendment has a careful vertical bill of rights careful vertical organization that begins in the First Amendment with a disciplined blueprint of the ideal democratic city on the hill that the founders hoped to establish, moves in the 2nd through 8th amendments to a careful enumeration of the threats to the First Amendment sitting on the hill organized by order of magnitude and chronology and closes in the 9th and 10th amendments with madisons instructions on how to read the ambiguous text. The 2nd and 3rd amendment deal with what madison viewed as the most dangerous threat, military subversion and overthrow the actual fate of far too many democracies. Madisonian structural solution was to build a temporary shadow army of the entire people the wellregulated and armed militia to deter wrongdoing by the unrepresentative standing army. Sadly, the majority of the Supreme Court has ignored the structural link between the 1st and 2nd amendments ruling that the Second Amendment right to bear arms has no link to the preservation of the First Amendment sitting on the help. Instead, the court reached the Second Amendment as mandating a freestanding right to own a weapon, even when possession may actually impede democratic order. If you come back next year we we will discuss the true madisonian meaning of the Second Amendment as a guarantee that the organs of armed coercion we will always look just like the people they are pledged to defend. Madison knew that when any group is excluded from the organs of armed coercion whether it be from the militia in 18thcentury virginia or the police force in 21st Century Ferguson missouri, the First Amendment city on the hill is at substantial risk. The 4th through 8th amendments are carefully organized, brilliantly organized as a chronological recapitulation of the enforcement process with the 4th amendment dealing with investigation and arrest the fifth amendment with interrogation and charging them is affixed with adjudication and the eight with something. Once again next year we will tackle the implications of such a a unique and remarkably disciplined recapitulation of the criminal justice process. Tonight lets concentrate on the structural harmony that madison constructed in the First Amendment. Consider the music. The full 45 the full 45 words of the First Amendment are organized horizontally. Six six textual ideas, freedom from religion, the establishment clause freedom of religion, the free religion, the free exercise clause, freedom of speech, freedom of the press freedom of assembly and freedom to petition for redress of grievances. Not one of the six ideas was new when madison 1st proposal to congress on june 8, 1789. Each had appeared at least three times in the 42 rights bearing documents ranging from the magna carta to the english bill of rights through the colonial charters and the revolutionary state constitutions that madison consulted. No one except madison with a little help from Roger Sherman has or had ever joined the 6th foundational ideas in a single rights bearing text and no one before or since has had the organizational genius to order the 6th foundational ideas chronologically as the right cycle of the democratic idea. He begins were any well organized or of democracy must begin in the constitutionally protected interior space of a free conscience. The birthplace of really can see democratic idea. It has been restored in the modern era by justice hard and loss versus the united states. One of the democratic ideas formed in the free mind of a citizen madisons text moves naturally from the interior precincts of the human mind to the ideas initial public articulation under the free speech clause. Madison recognize that public articulation of an ideal well necessary to the functioning of an effective democracy can reach only a limited audience. Accordingly madisons text next provides for a speech amplifier the free press what to disseminate the idea to a mass audience. What the democratic idea is really conceived and widely disseminated under the conscience of speech and press clause madison carefully provides for the next phase of democracy by protecting the right to take collective action in support of the idea through Free Assembly. Supplemented supplemented and 58 with a non textual right of free association. Finally, once the adherence of organized collectively and support of the idea, the petition clause assures them the right to have the idea presented and considered by the formal democratic lawmaking audience. Audience. No rights bearing provision in our history before or since so meticulously recapitulates the chronological odyssey of a democratic idea a democratic idea from its inception in the mind of a free citizen through articulation mass dissemination, and collective action and culminating in formal legislative consideration. While the careful inside out structure and order of madisons First Amendment might have been randall produced perhaps by monkeys with quill pens, i strongly doubt it. But random or not the disciplined organization of the text is an enduring gifts to us and indelible reminder that the roots of madisons First Amendment are firmly planted in the soil of a well functioning democracy. If we take the time and effort to hear the structural harmony of madisons madisons music in the First Amendment we can never tolerate the room is free speech clause that functions not as democracies best friend but as its very bad parent a bad parent who imposes excessive discipline on reasonable viewpoint neutral efforts to regulate campaignfinance needed to protect the idea of one person one vote. Vote. But a parent who is nowhere to be found when political gerrymanders take contested elections out of the system and cynically prevent the poor from voting at all. The the First Amendment rooted in madisons democratic music would never mandate the nomination of the electoral process by the ultrarich and by huge for profit corporations. The the First Amendment rooted in madisons democratic music would never allow the virtual elimination of contestable legislative elections from american political life. The First Amendment rooted in madisons democratic music would never tolerate cynical efforts to make it harder for the poor to vote. The the First Amendment rooted in madisons structural recognition of the primacy of conscience in a functioning democracy would never tolerate a case like employers division versus smith, the 1990 decision that requires the victim of religious intolerance by the government to prove that it was intentional in order to qualify for free exercise protection. The First Amendment rooted in madisons democratic music would never tolerate a truncated seven word imperial free speech clause that he this a rates the independent rules of the Free Press Clause the Free Assembly clause, and the petition clauses, guarantors of phases of the proper functioning of an egalitarian democracy a revived madisonian Free Press Clause would explore the speech amplifying role of technologically sophisticated free press and the functioning democracy providing the press with the right of investigatory access to government secrets, substantial installation but excepting viewpoint neutral regulation a powerful technological speakable fires when the regulation is needed to assure weak voices and chance carefully protect the only speech that is really free, the ability of the poor to engage in rhetoric paid for by sweat Equity Assembly and defense of their interests a revived madisonian petition clause would protect the right of the people to present a proposal to the legislature for formal consideration allowing the people not the politicians to set the legislative agenda and make it possible for the people to pass judgment on voting record of an elected representative. We honor James Madison as Thomas Jeffersons indispensable political tenets, revere him as a principal draftsman of the constitution and bill of rights, especially the First Amendment to respect him as her 4th president , but we will never give James Madison his just desserts or fully enjoy the fruits of his prodigious labors until we acknowledge him as a Great National poet, not a literary poet by stevens or dickinson or robert frost, not a prophetic poet like Abraham Lincoln walt whitman, not even a popular poet blake fdr or ronald reagan, madisons poetry reagan, madisons poetry speaks to us of the structural harmony of the 45 words of the First Amendment and the 462 words of the bill of rights meticulously organized to tell an enduring story of freedom and democratic water without a cause, not a word not an idea how to place. When you go home tonight after you buy my book take the time to read the full text of the First Amendment can ask yourself why it is ordered as it is marked listen to the democratic story it tells you cannot to begin the process of reinserting the music of democracy into a currently ruthless First Amendment has lost its way. Trevor norman and i expect to see you all here next year for the 2nd annual lecture, this time on hearing madisons music and the rest of the bill of rights. For now let me say good night. Thank you for coming, stay warm, stay warm, and have a safe trip home. [applause] [applause] [applause] interested in American History . Watch American History television every weekend 48 hours of people and documents. Visit cspan. Org history for more efficient. At the one we want to introduce you to Patricia Hernandez kelly. Professor, tell us about west baltimore. Guest one of the places that in my estimation is important in the nations current moment, an area that surprisingly has received very little attention. My research well, i joke around, i started writing this book