New York University Public Law and Legal Theory Working Papers

Document Type



Vanderbilt Law Review, Vol. 57, 2004


The article argues that the Bill of Rights displays a coherent structure similar to the structure underlying a great poem. The vertical structure begins with the articulation in the 1st Amendment of the Founders’ ideal polity, continues in the 2nd and 3rd Amendments with protection of the ideal polity against military overthrow, moves in the 4th through 8th Amendments to protection against civilian attacks on the polity by chronologically summarizing the criminal justice process, and providing protections against its abuse in the 4th (investigation and arrest), 5th (interrogation); 6th (charging and adjudication); and 8th (punishment), and closes in the 9th and 10th with instructions on how to read text in settings involving assertion of individual rights and government powers. No similarly disciplined structure exists in any known charter of rights. The horizontal structure of the First Amendment tracks the half-life of a democratic idea, moving from the recesses of the human conscience in the establishment clause, to shared expressions of conscientious belief in the free exercise clause, to four concentric circles of increasingly public political activity – speech; press; assembly and formal petition. Professor Neuborne argues that it is wrong to pull words and clauses out of the Bill of Rights and to read them in splendid isolation. Instead, he urges a holistic reading that respects its deep structure.

Date of Authorship for this Version



Constitution, Bill of Rights, amendments, government powers, individual rights