The argument is fresh, the writing is sophisticated, and the theory presented is subtle in its complexity. . . . Tsai begins by asking us to view legal and constitutional meaning as a matter of faith, begun by a single text but shaped mightily by the community and generations that have followed the original drafting and ratification. The community, he insists, shapes meaning, but even then the meaning is limited by the “precepts of eloquence—the customs governing acceptable forms and procedures for engaging in public debate.” His approach is thus multidimensional: It is theoretical in that he wants us to comprehend a new set of rules for First Amendment jurisprudence. It is developmental in that he wants us to see the temporal progression of First Amendment jurisprudence. It is also, and perhaps most profoundly, procedural; he wants us to know how it is that a community establishes and maintains faith in an idea.Professor Breslin singles out the final chapter of the book for praise:
“Adjudication and Facilitation” details how jurists should not be governed by a “translation” model of constitutional adjudication (one based on the simple need to interpret the text), but rather on a “facilitative” model whereby judges are supposed to manage, encourage, modify, and contribute to public discourse. [Tsai] writes that “the courts’ duty to say what the law is encompasses more than the power to articulate the meaning of text; it extends to the authority to initiate, suppress, and coordinate prevailing rhetorical trends.” The chapter is both prescriptive and interesting. Furthermore, it is the most compelling in the book because of Tsai’s ability to use the translation model itself to propose a more subtle approach for jurists. He spends almost the entire chapter interpreting Founding documents (mostly Federalist and Anti-Federalist writings) to prove his point. In so doing, he succeeds in contributing to public discourse.The reviewer concludes:
The book is refreshing in its novelty. There are, of course, hundreds of books on the First Amendment, but none is identically focused on the ways in which courts and the public react to each other’s impulses. Tsai successfully portrays the judiciary (as well as other institutions of government) as a body that massages constitutional and legal meaning in ways that impact a community’s comprehension of itself and the law. He is at his best when he engages in sophisticated theorizing about the significance of legal metaphor, the competing models of constitutional adjudication, and the possibilities for civic engagement or renewal.Read the entire review.