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The Power of Metaphor: What is the Bill of Rights?
By Burt Neuborne | Norman Dorsen Professor of Civil Liberties Emeritus NYU Law School
November 03, 2026
The 1791 Bill of Rights is our most precious legal document. The 1776 Preamble to the Declaration of Independence is more eloquent. It doesn’t get much better than Thomas Jefferson’s magnificent prose. But the stirring words of the Preamble are not judicially enforceable, so it’s hard to consider the Preamble as a “legal” document.
The text of the 1787 Constitution is the oldest and most successful charter of self-government in the world. It virtually invented the modern concepts of separation of powers and federalism. But, despite its crucial role as the charter of government, the 1787 Constitution, which emerged as a political compromise, is deeply flawed.
For one thing, it made its peace with slavery, assuring the importation of slaves until 1808, and permitting slave owners to use self-help to capture runaways. For another, it saddles us with a radically malapportioned Senate, an Electoral College that permits the election of a President who lost the popular vote, and holes where equality and the right to vote should be.
A bloody Civil War ending slavery, and a stream of Amendments have significantly improved the original, but the malapportioned Senate can’t be amended, leaving the document permanently unfinished.
The 1791 Bill of Rights is another story. It is a remarkable catalogue of the basic rights needed to operate a complex democracy, wrapped in judicially enforceable text. What the Bill of Rights lacks in Jeffersonian eloquence, it more than compensates with Madisonian structural genius.
We can define the Bill of Rights both historically and formally without much trouble. It consists of the first 10 Amendments to the 1787 Constitution, which were drafted by Congress in 1789 and ratified as a bloc in 1791.
Roughly, the First Amendment deals with the freedoms of speech and conscience; the Second with owning guns; the Third with preventing military occupation; the Fourth with regulating search, seizure, and arrest; the Fifth with due process and self-incrimination; the Sixth with criminal trials; the Seventh with civil trials; the Eighth with punishment; and the Ninth and Tenth with the use of analogy – permitted for rights; forbidden for powers.
But, apart from such a formal or historical description, what is the Bill of Rights? I’ve heard it called a laundry list; a recipe; a blueprint; a fence; and a shield.Choosing the right metaphor is crucial. Competing metaphors carry hidden normative freight. Think of the impact of Justice Oliver Wendell Holmes, Jr.’s decision to describe the First Amendment as protecting a “free market in ideas.” Choosing the right metaphor instructs us about how to read the often-enigmatic text of each of the first 10 Amendments.
If it’s a laundry list, a shopping list, or a recipe, you’ll read the text narrowly as a closed set. You don’t fool around with the text of a laundry list, or mess with a recipe, unless you want to change the taste. Don’t even think of returning home with something not on the shopping list.
I’ve spent a career at the ACLU and the Brennan Center urging judges to read the Bill of Rights broadly, often using analogy to expand protection beyond the literal or historical text. Not surprisingly, I opt for a metaphor that vests a judge with broad normative power to use analogy to expand the scope of behavior arguably protected by the Bill of Rights against majoritarian repression.
I argue that the Bill of Rights is not a laundry list; it is a great poem to human freedom.
But I don’t rest my case solely on the normative advantages of a broad vision of the Bill of Rights. I rest my case, as well, on the text’s disciplined narrative structure, which, when read carefully, unspools a remarkably coherent story of human freedom interacting with limited government power. Not a clause; indeed, not a word is out of place.
Sadly, lawyers and judges do not currently seek narrative coherence in our constitutional texts. Instead, we zero in on a few words in the text, lift them from their contextual surroundings, and purport to read them in splendid isolation from their surroundings – sometimes literally; sometimes historically; sometimes purposively; rarely pragmatically – but almost never as constituent parts of an overarching coherent narrative of human freedom.
It’s like reading a Wallace Stevens poem by pulling five or six words from the text and assigning a meaning to the deracinated words.
The great poem that is the Bill of Rights opens with the six clauses of the 45 word First Amendment – Establishment; Free Exercise; Free Speech; Free Press; Free Assembly; and Petition – chronicling the evolution of a democratic idea from its birth in the interior recesses of the conscience of a free mind to its articulation to an increasingly large audience of hearers who adopt and nurture it, eventually presenting it for formal codification into law.
Thus, the Founders’ conception of a democratic idea is born in a free mind shielded from government control by both Establishment and Free Exercise, shared with others through Free Speech; amplified to a mass audience through Free Press; organized into a political movement by Free Assembly (and Association); and presented for codification through Petition.
Not a single word or concept is out of place. Free Press can’t go before Free Speech. Free Assembly must follow Free Speech and Press. And everything turns on the existence of a free mind assured by Establishment and Free Exercise. It all funnels down to Petition, where the right to vote lives.
The ideas flow as a poetic narrative. That’s how we should read it. Much of what ails American democracy today flows, ultimately, from the Supreme Court’s refusal to read the First Amendment as a narrative about democratic self-government.
If we recognized the First Amendment as a democratic narrative, we would never tolerate a democracy dominated by great wealth, tainted by efforts to limit the vote, and literally poisoned by massive political gerrymandering that is on the verge of ending contested legislative elections in state legislatures and the House of Representatives.
Poetry also exists in the narrative structure of each of the remaining nine amendments. The Supreme Court’s failure to respect the Second Amendment’s structure turned a thoughtful constitutional provision aimed at assuring collective defense of the ideal but fragile political entity described in the First Amendment into a threat to democracy’s continued existence.
The poetry in the Bill of Rights doesn’t stop at a horizontal reading of each Amendment. It also appears in a vertical reading of the first 10 Amendments.
The order of the Bill of Rights – from Amendment 1 through Amendment 10 – tells a coherent story of how to protect the ideal democratic “City on the Hill” envisioned in the First Amendment from capture, overthrow, or subversion, with each threat listed chronologically or by order of magnitude.
Once the First Amendment sets out the six luminous ideas – no imposition of religion; free exercise of religion, free speech, free press, free assembly, and petition that allow an ideal democratic polity to flourish, the Second Amendment
grapples with the unpleasant fact, well-known to the Founders, that the fate of most democracies is to be overthrown by military invasion or domestic armed capture.
The Founders believed that an organized, well-armed, well-trained populace was the only protection against military overthrow by the standing army. That’s why the Second Amendment has pride of place immediately after the First. That’s why the Third Amendment follows closely, protecting against military occupation.
The Founders then turned to the next most feared armed threat to the “City on the Hill”: abuse of domestic law enforcement power. Amendments Four through Eight are a disciplined, chronologically organized summary of the law enforcement power, moving from investigation in the Fourth Amendment’s protection against unreasonable search, seizure, or arrest, through interrogation in the Fifth Amendment’s protection against self-incrimination; through criminal adjudication in the Sixth, and civil adjudication in the Seventh, to punishment in the Eighth.
It’s hard to imagine a more precisely organized narrative of the phases of investigation, arrest, adjudication, and punishment that characterize the criminal process.
The Ninth and Tenth Amendments close the Bill of Rights with thoughtful instructions on how to read the text. Borrowing from the English concept of “equity of the statute” that authorized British judges to expand statutory text to cover closely analogous settings, the Ninth Amendment tells us to read the rights-bearing provisions of the Bill of Rights generously, using analogy to expand the literal text to cover closely analogous settings.
That’s just what we did in 1957 when Justice Harlan expanded the Free Assembly clause to protect freedom of association.
Conversely, the Tenth Amendment instructs us to use the competing English canon of exclusio unis to read power-granting provisions narrowly, forbidding expansion through analogy. Read together, the Ninth and Tenth Amendments invite us to read rights-bearing text in the Bill of Rights generously, using analogy when necessary to provide needed protection; but strictly confining power to the literal text.
Recognizing the narrative poetic nature of the Bill of Rights doesn’t eliminate hard questions about their meaning – but it does shift the emphasis from ascribing arbitrary meaning to an artificial cluster of words to efforts to advance the structural coherence of the entire remarkable document.
Take, for example, the Petition Clause of the First Amendment. Existing, clause-bound readings have reduced the once-mighty Petition Clause to virtual irrelevance.
But, read poetically, the Petition Clause is the end-point of a narrative process by which a democratic idea is conceived in freedom and transformed into law through a series of communicative events.
Once the idea has been conceived in a free mind, articulated through free speech, circulated widely through a free press, and embraced and advanced through free assembly and association, it is submitted to the government for adoption via petition.
Petition, thus, includes a process designed to bring an idea to the legislature’s attention. But I think it means more. Just as free association was interpolated in 1957 in NAACP v. Alabama as an integral aspect of free assembly, I believe that the right to vote is an integral aspect of the petition process and the logical culmination of the poetic First Amendment.
Once you recognize the remarkable narrative precision of the First Amendment’s 45 words, and the equally remarkable vertical organization of the first ten amendments, Madison’s voice – I call it Madison’s Music – calls us to read the Bill of Rights as a protection of democracy.
I do not believe that the disciplined structure of the First Amendment and the Bill of Rights reflects a decision to throw a pot of ink at the wall and use the splatter to organize the great text.
Rather, the poetry in the Bill of Rights reflects the genius of a Founding generation that understood what it took to protect democratic government and told us how to do it.
All we need to do is listen to Madison’s Music.