Friday, May 29, 2009

Lief Carter's Review of Eloquence and Reason

Lief Carter, Professor of Political Science Emeritus at Colorado College, is the author of many books, including Reason in Law (with Tom Burke). Professor Carter gave the following remarks on Eloquence and Reason at the Law & Society Association on May 28, 2009:

1. First and foremost, this book is, for anyone even remotely connected to American constitutional law, a “fine read.” In part, the book offers, in a nutshell, fun. A few examples:

—Fun facts. Norman Rockwell’s iconic Saturday Evening Post cover of the lone man standing and speaking out at a New England town meeting appeared just weeks before the oral argument in West Virginia State Board of Education v. Barnette.

—Fun with Plato: a quote from The Republic about fooling the people, as memories lapse, into thinking their leaders are made of gold and silver instead of baser metals invokes memories of the hagiography of Ronald Reagan.

—Fun with themes, especially the theme of fire in constitutional rhetoric, which runs from the small spark that destroys the social order in Gitlow v. New York to Brandeis’s reference to burning witches, concurring in Whitney v. California, where burning is what the state does to suppress freedom, to fire in the draft card burning case, the flag burning case, cross burning in RAV v. City of St. Paul, and so on.

—Fun with sex. Not only did the invention of the pill place women’s ability to make procreative choices on the political front burner, the ensuing relaxation of taboos in sexual rhetoric, Tsai suggests, made more thinkable the sexual liberation culminating in Stanley v. Georgia and the right to enjoy legally obscene materials in the privacy of one’s home.

The book, in passing, offers great teaching tips, including new insights into Justice Jackson’s rhetoric in Barnette and reminders of important first amendment cases that have fallen through the cracks of standard constitutional law casebooks.

2. The book’s central argument is dead on. Rhetoric really does matter in legal politics just as it does in “normal” politics. Legal rhetoric is the art that builds and re-builds legal communities just as Obama’s rhetoric of “change” remade the political landscape in 2008, and just song does in Wagner’s great political opera, Die Meistersinger, and just as dance does in the film Strictly Ballroom.

3. The book may stretch too far when it suggests that First Amendment rhetoric creates a “foundational ethic,” a “fellowship,” or a “faith tradition” for the American people, given what we know from political science research about both the limited accuracy and the transience of the factual knowledge most Americans have about law and politics. But Tsai’s theoretical framework brilliantly and accurately applies to the continuous rhetorical building of the community of we scholars and practitioners who do follow and care about constitutional law. And like all histories, this cultural history of the rhetoric of First Amendment jurisprudence implies a bit too much inexorability. Readers are at times lulled into the sense that “good rhetorical practices” have led to “good First Amendment jurisprudence,” though Tsai means no such thing. Still, a bit more attention might have been paid to what Machiavelli calls “fortuna” and Rorty calls “contingency.” The Bush administration’s attack on the rule of law failed due more to its own rank incompetence—and on where a particular hurricane happened to hit in 2005—than on any innate robustness in the rule of law.

4. Tsai’s conclusion, though, is dead on. Adjudication is facilitation. Legal rhetoric is the rhetoric that facilitates peaceful rather than violent conflict resolution. In a particularly nice touch, this deeply historical book reminds us that we can find much of its argument already in James Madison and the reasons he gave for shifting from opposing to supporting a bill of rights. In short, for our “faith community” of constitutional law fans, Eloquence and Reason, because it is a jolly good read, practices what it preaches. It strengthens our community.

Tuesday, May 26, 2009

Anatomy of a Supreme Court Pick

According to ABC News, President Obama was drawn to Sonia Sotomayor early on, but took the time to weigh various factors including her living-the-American-Dream background, her intellectual heft and philosophy, how much political capital would have to be expended to win confirmation, and the gains to be had as well as the skirmishes to be avoided.

It surely didn't hurt that Sotomayor has a stronger educational pedigree than Antonin Scalia, the rags-to-riches story of Clarence Thomas, a comparable tenure on the federal courts as Anthony Kennedy, and could galvanize important parts of the electorate like the selection of Thurgood Marshall or Sandra Day O'Connor.

While past presidents have cared about different specifics, I would venture to say that most presidents have cared about roughly similar things in weighing competing priorities. The entire enterprise involves seeing a nominee through the prism of narrow considerations such as a president's policy agenda and how best to secure favorable news cycles, as well as long-term considerations such as party politics, electoral prospects, and constitutional legacy. Franklin Roosevelt in the 1930s and 40s and Ronald Reagan in the 1980s—two presidents with lofty constitutional ambitions—faced an analogous set of considerations. Even if you wish to remake the Judiciary in your own image, you must contend with the practicalities of governance.

Roundtable at Law and Society, May 28 (Bumped)

Eloquence and Reason will be the subject of a roundtable discussion at this year's annual meeting of the Law & Society Association in Denver, Colorado. It will take place at the Grand Hyatt Hotel, 1750 Welton Street, from 2:30-4:15 p.m.

The roundtable will feature:

Mark Graber, University of Maryland, Political Science and Law (Chair)
Susan Burgess, Ohio University, Political Science and Women's Studies
Julie Novkov, SUNY-Albany, Political Science and Women's Studies
Lief Carter, Colorado College, Political Science

Thursday, May 21, 2009

Reply to Lowndes

At the end of his many generous comments about Eloquence and Reason, Professor Lowndes poses four incisive questions meant to test the book's theoretical implications. First, Joe wonders whether there are certain unalterable baselines or preconditions for the model of constitutionalism to work, such as a liberal commitment to property rights. He correctly observes that the book's theory of constitutional change as linguistic transformation is intended to be supple and descriptively accurate without giving up on the possibility of constraints. The answer about minimal conditions is an important and unfinished part of the project.

I focus on structural constraints such as institutional consensus and cultural practices (e.g., ways of talking about constitutional rights and political beliefs). To the extent that facility with language is important, one's ability to acquire the basic tools necessary to participate meaningfully in deliberation (and thereby sustain a constitutional culture) ought to be made a system-wide priority. I wouldn't exclude the possibility that some minimal rights could be part of every citizen's toolkit, such as those fostering autonomy and the capacity to deliberate, but my inclination is to see property rights regimes more as particular manifestations of liberalism (of which there are many) rather than as necessary to democratic constitutionalism itself.

Joe astutely notes that much constitutional law is driven or constrained by the preferences of political elites. This is true. Any model that hopes to have explanatory power while resembling the American system must account for: (1) an original design decision to make it difficult to alter the system in a profound manner; and (2) our particular history, which is littered with those who failed in their efforts at political transformation. There must be some convergence of political beliefs and instrumental reasons for acting before lasting change can occur. The challenges faced by those interested in regime change prove to be a source of endless frustration, but essential to test the claims of the many who would stake a claim to govern based on the Constitution. It's not easy to re-write the Constitution, nor should it be.

Second, Joe wonders whether repeated invocations of an imaginary "people" obscures divisions based on race, culture, and income. My answer is yes, though to some extent this must happen. Obscuring or suppressing differences is important to the project of creating community over time, and it is especially necessary if one is interested in pursuing a transformative agenda. This is true whether a president is attempting to rally the public or an activist is seeking to promote racial equality. At the same time, I want to stress that democracy can only work if citizens are capable of nurturing a dream that departs, sometimes painfully, from their daily existence. A critical faculty, therefore, is essential to what I have called "rhetorical autonomy": each citizen's sovereign authority to challenge, contest, or reject official interpretations of the Constitution. In reality, I think most Americans understand the difference between an imagined America based on mutual aspirations and one that is rife with inequality and difference.

Third, Joe notes that the model of linguistic transformation depends on boundaries between lawful popular action to interpret the Constitution on the one hand, and mob activity or violent revolution on the other. He worries (and rightly so) that judicially-sanctioned boundaries may be too constraining in the face of severe deprivation. My efforts on this point are a partial answer to popular constitutionalists, a number of whose work suggest that all out-of-court actions to make sense of the Constitution are equal. A distinction between legitimate and illegitimate ways of constructing the constitution through popular means is predicated on an existing written Constitution as well as acceptance of certain rule-of-law values, two of which are reason and necessity. As I suggest in Chapter Four when I discuss how the Justices reshaped First Amendment law to accommodate peaceful civil rights protest, even rule-of-law boundaries are contestable by those in dire straits, though I think they cannot be ignored—unless we find ourselves in a truly revolutionary break, in which case institutions no longer constrain and the most settled founding ideals are up for grabs.

Fourth, Joe urges investigation of other democratic actors beyond individuals and social movements. I shall take up his invitation. One of the things illustrated by Joe's work is the darker side of popular culture sustaining our democratic discourses. It's undeniable that the same mobilized war discourse that fostered incremental gains on race and religion in the 1940s and 50s also was harnessed to ostracize dissidents such as communists, certain sectors of the labor movement, and other perceived foreigners. These events, too, are part of our constitutional culture. The challenge going forward is to integrate the darker aspects of a linguistic regime with its official and aspirational features. Which beliefs and actions are unfortunate but unavoidable, and which aspects of a governing regime can participants reasonably resist? The answers are not purely of academic interest, for they are likely to guide everyday decisionmaking.

Wednesday, May 13, 2009

Joseph Lowndes on Eloquence and Reason

On May 6, Professor Joe Lowndes, University of Oregon delivered remarks on Eloquence and Reason to those assembled at the Knight Library in Eugene. Besides his terrific monograph on modern American conservatism, From the New Deal to the New Right, he has edited a volume titled Race and American Development (Routledge, 2008) (with Julie Novkov and Dorian Warren).

Professor Lowndes has kindly permitted me to reproduce his words:

It is my great pleasure today to celebrate Robert Tsai’s extraordinary new book, Eloquence and Reason.

Over the last few years, I have had numerous conversations with Rob about his project.

I approach this book not as a law professor but as a scholar of politics interested in language and culture. One of the immediate strengths of this book is the ease in which it traverses legal, political and cultural ground. It is rare to find this facility among scholars of any discipline (and I might say particularly of law).

In this book, Rob has simultaneously provided us with a number of important things all at once. He writes that:
the principal aim of Eloquence and Reason is to present a general theory to explain how the words in the Constitution ratified by a distant generation become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans.
The book has squarely hit its target, and has done much else along the way:

1. It offers a compelling– and politically relevant – theory of judicial review that is at once empirical and normative.

2. It proposes a theory of governing regimes that has detachable conclusions for broader theories of political order and change.

3. It advances a thesis on the relationship between language and politics, particularly in relationship to the creation, reproduction, and transformation of national identity.

4. It situates the U.S. Supreme Court as a branch of government every bit as generative of politics as the executive and congressional branches.

Using the 20th century development of the role of the first amendment in U.S. law and politics as his case, Rob demonstrates that legal decisions are never – indeed can never – be a matter of the mere translation of the founders’ fixed intentions. Indeed, even the attempt at divining founding intentions is bound by temporal political concerns.

The timing of this book could not be more relevant, given David Souter’s decision to permanently return to his library in the white mountains of New Hampshire. But Rob does not merely assert a normative position here. Dispatching with theorists who indulge prescriptive contract theory fantasies of an originary moment of political natality like John Rawls or Robert Nozick, Rob offers an account of how the court necessarily reflects and engages with the social and political context in which it is situated. The court here then is a living institution, enlisting political imagination as it shapes and is shaped by democratic politics in a national community.

Of course, the question then emerges: when and how does the court reflect and shape politics? Does it happen episodically, or incrementally?

Rob challenges work of scholars such as Bruce Ackerman, who see the court as producing dramatic regime changes at rare, decisive moments – which are then followed by long periods of ordinary politics in between. For him Ackerman there are three moments – the founding, Reconstruction and the New Deal.

One could extend this critique to Jurgen Habermas’ prescriptive notion of “constitutional patriotism” where new political norms bubble up slowly through the demos, but don’t become fully instantiated until a supreme court finally and dispassionately rules to authorize fundamental change to the polity.

A large body of work within political science, particularly U.S. politics, is of a piece with Ackerman’s approach. The main theoretical constructs in political science – going under the signs of realignment theory, punctuated equilibrium, or path dependence (to name the main ones) all adhere to theories of intermittent shifts in the main imperatives of political order, which are then followed by periods of relative stasis.

Significantly, Rob resists this dramatic notion of regime change, but without abandoning the idea of regimes themselves. He convincingly demonstrates how certain discursive understandings of politics (in this case free speech) reign for periods of time, creating coherent narratives – or interpretive frameworks that foreground certain political claims and perspectives, while foreclosing others.

But while these regimes give dominant meaning and therefore stability to certain political projects, they are never impermeable, never achieve total hegemony. As Tsai writes, “ideological vestiges of earlier eras may persist in legal terminology, lying dormant until conditions become conducive to a revival.” Or as he points out, the discourse may temporarily migrate to other domains.

For scholars seeking to understand political hegemony, or more broadly questions of order and change, this is a much more supple rendering of how institutional regimes operate. For the theory of eloquence advanced here, the focus is of course the Supreme Court, and perhaps the court is the most likely place to see how language operates on institutions, but as Foucault reminds us, institutions generally are but sedimented forms of discourse. There is much that is therefore transportable about this notion of linguistic regimes – both for what it says about the character of order and the possibilities of change.

And indeed, for Rob, a regime of dominant legal reasoning must be nested within broader political and social contexts. Thus I found many resonances, and indeed points of clarification, for my own work on institutional order and change.

This I think is the great contribution of this book – to understand politics as anchored in language. Language sustains commitments, legitimates power, and underwrites political imperatives. It also opens up the possibility of challenging reigning interpretations, and offering new ones.

If governing regimes are always partial and contested, what holds them together, and how do they get altered?

Key to his linguistic explanation for Tsai is the role of metaphor. Metaphors are regularly employed in supreme court decisions and have been central to how we perceive the first amendment. Through metaphor, dominant understandings of national identity are regenerated, extended, or directly challenged. In a fascinating chapter of the subject, Rob traces how the image of fire is deployed to authorize particular understandings of the first amendment, from Holmes’ metaphor of screaming fire in a crowded theater to constrain speech to Jackson’s metaphor of burning down the house to roast a pig as a later warning of the harm to the polity wrought by overly suppressing it.

For Rob, “metaphor’s virtues lie in its potential to elucidate and proliferate visions of the democratic order, creating or destroying the narrative structure of the law and by relocating the sites of state authority.”

This works because metaphor helps us imagine the nation in a coherent way. Here citizens are given conceptual tools to imagine themselves as members together in a nation – the vast majority of whom one will never see or meet (a la Benedict Anderson’s Imagined Communities).

But metaphors do not merely sustain imaginary domains, they also challenge them at certain moments. In order to contest reigning notions, the metaphor is altered via a changed narrative so that the interests and conflicts are rendered differently. Actors, institutions, the nation, collective groups are assigned different metaphoric and narrative functions in ways that reorient national self-understandings.

Interestingly, Rob repeatedly describes the examples of metaphoric appeals he gives us as populist. This is not merely a stylistic observation. Perhaps ironically, the use of metaphor at the level of the Supreme Court must by necessity be populist, because decisions are aimed at – indeed claim to rule on behalf of – the entire national community. Populist appeals claim an internal homogeneity – a deeply shared identity, even full equivalence between subjects.

As such, all populist assertions are empirically false, but mythically true. Rob points out that it is myth – the myth of a national community - that enables us to live and act together, to see ourselves as members of a community. (Here he depends on Joseph Campbell, although I think politically Nietzsche or Roland Barthes might prove more fruitful.)

Understanding the production of a political community, and of how and when its imperatives change involves an analysis like Rob’s, which looks at the ways in which political appeals are expressed, altered, combined, received, circulated, and acted on within changing political circumstances.

The question emerges, of course, of how language circulates? Is it merely elite driven? Rob answers in the negative – that the language the shapes supreme court renderings is language that circulates and is generated by non-elite actors as well. Thus there is something truly democratic at work.

Rob is clear that challenges to the order take place within constraints – within the realm of possibility generated by prior understanding of the text. It is also constrained for him, normatively, by what he sees as acceptable forms of democratic action. Forms of speech or actions governed by a performed fealty to the constitution.

My questions for him then are about how to think about the limits of change within the eloquence model, and connected to that, how do we negotiate the inherent forms of power and authority that are situated in the Court.

First, as Rob notes, not every textual interpretation of the constitution is credible. Is this merely a temporally bound phenomenon, or are there essential boundaries that must secure, for instance, the liberal relations of property that stratify power relations in the U.S.?

My second question concerns the populist renderings of “the people,” necessary for governing metaphors to work: because “the people” mutes differences, does this fiction obscure the ways in which Americans are deeply divided culturally, and rendered radically unequal economically and socially?

Third, the model of eloquence requires certain boundaries of democratic action that for Rob distinguish between civil forms of protest and mob action – the former signaling a desire for goals of renewal as opposed to the latter, signifying revolution or criminality.

I fear that this may be too limiting on forms of democratic action: if we think back on major celebrated advance in American liberalism and democracy, the revolution, emancipation, labor protections, civil rights, we can see much more robust forms of democratic action unconstrained by liberal norms or socially accepted practice: from the mob street actions of the 1760s to abolitionist zealotry in the 1850s, to militant labor action from the 1880s through the 1930s, to black liberation in the 1950s and 1960s, democracy could not be contained within judicially sanctioned niceties. In a nation that has always fallen far short of egalitarian promises, that indeed has legally bolstered white supremacy, class rule, and gender exclusion, among others, something more than rhetorical eloquence has been required – forms of zealotry very often in spite of an expressed constitutional or patriotic fealty.

Finally, I had a question about the social and political influences on the court’s reasoning that pushed harder on the question of what exactly is being facilitated by judicial interpretation and on whose behalf.

Are there other influences here on the court’s linguistic regime besides social movements and individual political actors? In the case of civil rights, Mary Dudziak claims for instance that it is less democratic idealism than a propaganda war with the soviets among decolonizing nations that pushes the courts toward greater tolerance of civil rights protest. Or in the case of Schenk v. U.S., what role does the Russian revolution, intensified anticommunism, and demonization of domestic workers movements play? I ask because it seems to me generally that while linguistic regimes are nested within broader national contexts, they still seem fundamentally elite-derived, serving forms of elite interest.

Anyway, thank you again Rob for the opportunity to read and comment on this compelling, theoretically rich and beautifully written book.

Tuesday, May 12, 2009

Constitutional Borrowing

A robust constitutional culture will permeate the beliefs and actions of individuals, sometimes subtly, sometimes in highly visible ways. For instance, as I argue in Eloquence and Reason, the rise of the First Amendment to its privileged place has encouraged advocates and jurists to draw upon the ideas of free speech, assembly, and religion in order to bolster or dislodge a wide array of governing values.

In Constitutional Borrowing, 108 Michigan Law Review (forthcoming 2009), Nelson Tebbe, Brooklyn Law School, and I tackle a number of the questions presented by a legal order in which the interpenetration of ideas is the norm.

The abstract follows:
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Friday, May 8, 2009

Reply to Fleming

I am honored that Professor Fleming has taken the time to read my book so carefully. Jim raises three kinds of questions of Eloquence and Reason: (1) the book's methodology and theoretical aims; (2) its causal claims about the Gobitis to Barnette sequence; and (3) its characterization of the Lawrence Court's deployment of the First Amendment on behalf of sexual autonomy. I'll take these up in turn.

I. General Comments

Jim wonders whether the book argues that the First Amendment is the "defining feature" of American constitutional culture or is simply interested in exploring First Amendment subculture. The answer is both, to varying degrees: I am primarily interested in explicating the contours of the political belief system and grammar we together call "First Amendment law." I am concerned with how that emerged over time, and, as a theoretical matter, how broader institutional and cultural processes gave us the modern First Amendment we have. That said, Eloquence and Reason also contends that, for better or for worse, and as originally designed or not (I think probably not), the First Amendment has come to dominate both the development of legal doctrine and ordinary Americans' attitudes about the Constitution. Because the book focuses on a handful of case studies during the twentieth century in the name of theory, it necessarily offers an incomplete history and partial ethnography. But, even though its sources consist of the writings and speeches of judges, lawyers, and elected officials, once more work is done I would expect to find that First Amendment ideas influence how ordinary people think of the Constitution.

When the book analyzes metaphor, it endeavors to make a general defense of the practice of transmitting constitutional ideas in metaphorical terms, while leaving room for just the kind of critique of specific metaphors that Jim offers of the "marketplace of ideas."

II. Gobitis to Barnette

Jim is skeptical that executive branch action did much, if anything, to cause the Supreme Court's shift from one position to another. I don't deny the role that personnel changes and changes of mind played, but argue that everything occurred in an environment shaped significantly by presidential action. While the Supreme Court was going to have to hear Walter Barnett's appeal, there are a few ways presidential language may have "caused" the outcome and content of Barnette:
1. To the extent that presidential rhetoric flooded public discourse, its basic thematic opposition to the logic of Gobitis (especially its claim that security and liberty stand in opposition) weakened that decision's capacity to gain popular assent.

2. Presidential words and executive branch actions, coupled with a refusal to endorse Gobitis publicly, signaled to the High Court a refusal to cooperate in enforcing its constitutional vision.

3. Presidential emphasis of the right to speech and religion between the years of 1940 and 1943 empowered pro-rights advocates. These included members of the media, high officials, DOJ lawyers, lawyers for the litigants, and receptive members of the Supreme Court, who specifically mentioned FDR's speeches and argued that Gobitis interfered with the president's priorities.

4. Presidential emphasis on the First Amendment may have inclined those within the administration to favor the following changes to Supreme Court personnel: Stone to Chief Justice, Robert Jackson for Stone's seat, and Wiley Rutledge for Jimmy Byrnes. Each of these individuals opposed Gobitis.

5. These words not only wrapped the plight of the Jehovah's Witnesses in major war-inspired themes but also offered a roadmap to follow should the Court wish to present a united front regarding the president's war agenda.
To be fair, I delve more deeply into these historical and theoretical claims in a subsequent article, Reconsidering Gobitis. My posts here, here, and here discuss archival materials suggesting that DOJ lawyers sought to overturn Gobitis and that extra-judicial statements by the executive branch impacted the Court's decisionmaking.

Footnote Four of the Carolene Products decision is important to contemporary theory. But here is where I fear Jim may be reading too much back into the past. Footnote Four cites a few First Amendment cases for the proposition that certain rights trigger "more exacting judicial scrutiny," and is a bit cagey at that (specifically mentioning "dissemination of information," "interferences with political organizations," and "peaceable assembly"). It does not explicitly use the "preferred position" formulation or otherwise place First Amendment rights above other non-economic liberties. Harlan Fiske Stone's Gobitis dissent mentions the process-clearing and "discrete and insular" rationales, but it nowhere claims that the First Amendment is to be privileged over other political rights. It's in his Opelika I dissent that Stone explicitly employs that formulation for the first time: "the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position." This more subtle reading of the decisions shows that a political order privileging the First Amendment was on the ascent during this period, but that it was not built all at once in 1938, nor complete by 1943.

III. Autonomy

Jim is among the most eloquent and committed defenders of individual autonomy today. And I quite agree that in the pluralistic order most of us accept today, it is absolutely essential to reconceive how the law can respect people of diverse experiences and life plans so as to promote human flourishing. But I don't pretend that sexual autonomy was on the minds of the Founding generation or that it is self-evident from the handful of cases decided. Rather, any right of autonomy must be (as Jim's own labors attest) constructed, articulated, and defended in ways that, if we are honest, will have seemed foreign to the generation that authored original text but will be persuasive to us living today. For me, Lawrence v. Texas is defensible on any number of grounds. So when I point out that the Lawrence Court has drawn on the First Amendment to "reconstruct" the notion of sexual privacy, I mean the following:

First, normative theory must be rooted in historicity if it hopes to persuade. Despite the fact that Justice Douglas may have downplayed the First Amendment over successive drafts, the published decision in Griswold v. Connecticut nevertheless draws heavily from First Amendment examples in its articulation of the various "zones of privacy." That Douglas was initially inclined to draw on the First Amendment more aggressively is compatible with the claim of Eloquence and Reason that the First Amendment has an influence—perhaps too much influence—on contemporary adjudication. For it's possible to say that being too wedded to the First Amendment may have prevented a more full-throated articulation of autonomy.

Second, Bowers v. Hardwick did violence to the emerging jurisprudence of privacy or autonomy; hence, the need for "reconstruction" of liberty insofar as human sexuality is concerned. Among other things, that decision appeared to make liberty turn on sexual preference (if the Court wished to return to some kind of privacy-is-for-procreation formulation, it should have overruled Eisenstadt v. Baird). But Bowers, while it damaged then-existing doctrine, also was a "socially plausible" reading of the Constitution in 1986. That social attitudes change, I think, is appropriately if cautiously acknowledged in Lawrence.

So, then, if I think Lawrence is socially plausible in 2003, normatively defensible, and even worth celebrating, what do I mean when I say that it is still necessary to engage "the hard work of making lasting connections" between the First Amendment and sexual liberty?

Just this: the cases do not articulate well why the right to free speech is implicated by the choice of sexual partners, for straights or for gays. Instead, Lawrence (incorporating Griswold and Casey) trades on widely-accepted belief in expressive values (by the way, I agree that today there is popular support for some notion of sexual autonomy). This type of appropriation and synthesis is a staple of constitutional decisionmaking--indeed, I have argued as much. But that doesn't change the fact that connections between domains of constitutional knowledge should be elaborated rather than merely asserted. Like the talented theorist he is, Jim points out that earlier cases already suggested that autonomy implicates expressive values. But those controversies involved making choices about whether or not to beget a child, and more importantly, the rulings only gesture in the direction of speech and association.

Do sexual choices really speak to the world in a coherent way or are they better understood as control over one's body or resistance of control by others? If sexual choices are expressive, under what circumstances? When securing the durable assent of elites and the general population is the name of the game, it's important to tend to these matters—if not in Lawrence, then down the road. Most of these questions having to do with persuasiveness lie beyond the scope of my book, which demonstrates only why arguing over liberty in such terms may be legitimate. Eloquence and Reason ends right around where Securing Constitutional Democracy begins.

Jim Fleming's Comments at ASLCH

Jim Fleming, Boston University, has graciously given me permission to post the comments he delivered on April 3, 2009, at the Annual Meeting of the Association for the Study of Law, Culture & Humanities. He was a participant on a lively roundtable on Eloquence and Reason in Boston. Professor Fleming is the author of several books on constitutional theory, including Securing Constitutional Democracy: The Case of Autonomy, and Constitutional Interpretation: The Basic Questions (with Sotirios Barber). He is working on Rights and Irresponsibility (with Linda C. McClain). In a future post, I will respond to Jim's thoughtful comments.

Here is Professor Fleming:

I want to begin by noting five great things about Robert’s book. Then, I’ll make three general observations about it. Finally, from the standpoint of my own constitutional theory, I’ll criticize his analysis of Gobitis & Barnette along with his discussion of Griswold & Lawrence.

I. Five great things about the book

First, it is, appropriately enough, an eloquent book. Second, it is also an elegant book. Third, it is proudly post-originalist. Fourth, and relatedly, its model of adjudication as facilitation rather than translation of original meaning is quite powerful. Finally, and also relatedly, it is a rich work of popular constitutionalism, especially of presidential popular constitutionalism, over and against judge-centered and originalist constitutionalism. From reading the book, I learned much about subjects I have been studying for years.

II. Three general observations

One, the book manifests an ambiguity surrounding, in terms of its subtitle, “creating a First Amendment culture.” Does Robert mean to argue that our constitutional culture is a First Amendment culture? That the First Amendment is somehow its constitutive, defining feature? Or does he simply mean to say that he is analyzing the First Amendment as an aspect of our larger constitutional culture? I would find the book more persuasive on the latter interpretation.

Two, is the book really about our First Amendment culture or instead a highly literate and terrifically clever analysis of metaphors and rhetoric in Supreme Court decisions and presidential statements about the Constitution? To a large extent, it seems the latter. For example, his wonderful analyses of the metaphors of the marketplace of ideas and of speech-as-fire demonstrate that the Supreme Court justices love to use these metaphors. But does it tell us anything about “precepts of eloquence” and the “linguistic regimes” outside Supreme Court opinions, if you will, out there in the culture and in the ways people think and talk about freedom of speech?

Three, I worry that in places the book fails to recognize the difference between metaphor and theoretical framework, e.g., in his analysis of “the marketplace of ideas.” When I teach Constitutional Law, I distinguish two understandings of the First Amendment as protecting a “marketplace of ideas.” First is the general metaphor illustrated by Justice Holmes’s dissent in Abrams: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” Second is the specific law and economics-inspired theory based on an programmatically developed analogy between the economic marketplace and the political marketplace. Judge Easterbrook explicitly in Hudnut (the Indianapolis pornography case), and Justice Scalia implicitly in R.A.V. (the St. Paul hate speech case).

On Easterbrook’s view, government must be neutral in the political marketplace as between the views that women are equal to men and that women are subordinate to men, just as it must be neutral in the economic marketplace as between the views that consumers should buy Fords and that they should buy Toyotas. And so, just as he would object to the government picking winners and losers in the economic market, e.g., saying buy a Ford rather than a Toyota, so too he objects to government sanctioning favored viewpoints in the political market, e.g., saying women are equal to men rather than subordinate to men. Under this specific theory, as distinguished from the general metaphor, the First Amendment becomes a veritable marketplace of ideas. My sense is that when most people in our constitutional culture speak of the marketplace of ideas, they are using it as a general metaphor, not as this specific theory.

III. The Turnabout from Gobitis to Barnette

This is a fascinating case study. It begins with an excellent explication of FDR’s conception of four freedoms. And it is a good illustration of presidential role vis a vis the First Amendment culture (analysis of Reagan’s role vis a vis wall of separation is also quite illuminating). But Robert does not establish that FDR directly contributed to or influenced the Supreme Court’s decision to overrule Gobitis in Barnette. I think that what he calls “internal accounts” and changes in personnel are sufficient to account for the turnabout.

Let’s look at Robert’s formulations:

1. “Rhetorical intervention of the president...cuts against the internal account.” (114) But as far as we can tell from his own account, the rhetorical intervention occurs in the constitutional culture generally, not at the Supreme Court.

2. “The president’s oration appeared to repudiate the logic of Gobitis.”(119) Yes, but that does not establish that it influenced the Supreme Court’s decisionmaking.

3. “The 1941 address came as close to a repudiation of Gobitis as one could expect from the president.” (120) Yet, the repudiation is highly general, and not directed at Gobitis or at the Supreme Court. In my experience, presidents don’t shy away from naming Supreme Court decisions they reject and want to overturn. FDR himself certainly did not.

4. Justice Stone’s dissent in Jones v. City of Opelika “appeared to be the first time that he...had placed the First Amendment in a ‘preferred position,’ endorsing the contemporaneous moves of the president.” (121) But Stone had placed the First Amendment in a “preferred position” in United States v. Carolene Products in 1938 and in his dissent in Gobitis in 1940. In the casebook of which I am co-author, we publish the Frankfurter-Stone correspondence about the application of Carolene Products to Gobitis. And Stone’s dissent in Gobitis is straight Carolene Products.

5. “After this series of presidential orations and judicial responses, the Supreme Court revisited the question of the coerced flag salute.” (122) Here Robert practically commits the fallacy: after this, therefore on account of this. He does not squarely establish that there has been a judicial response specifically to the presidential orations.

6. Next, “discursive convergence between the political branches and the judiciary” and “mirroring the rhetoric of the president.” (123) Convergence, yes, and mirroring, yes, but he has not established more than that.

7. Finally, “taking its cue from presidential rhetoric, the Supreme Court endorsed and elaborated the point.” (126) Again, he has not established that the Supreme Court has taken its cue from presidential rhetoric. I grant that Robert does establish that FDR contributed to Walter Barnette’s brief, which alluded to the four freedoms. (122-23)

I want to offer an alternative, sufficient account: The shift is explainable on the basis of changes of personnel and changes of mind. Changes of personnel: Rutledge and Jackson replace two members of the Gobitis majority. Changes of mind: Black, Douglas, and Murphy come to their liberal, First Amendment respecting senses. It is possible that in Gobitis they were moved by concern for national cohesion but then came or reverted to their senses in Barnette. The point is that we don’t need FDR in the account: he is a fifth wheel.

Finally, this change is explainable by the Supreme Court and the president independently reacting to the same developments in the world: or, convergence and mirroring in this sense.

IV. Griswold & Lawrence

A. Griswold

The first draft of Justice Douglas’s opinion of the Court in Griswold placed primary emphasis on freedom of association. Justice Brennan urged Douglas to shift the emphasis to “an expansive interpretation” of privacy. And Douglas did so in the final version of the opinion.

Robert analyzes Douglas’s opinion as if it is trying to trade on “the power of First Amendment ideas in reconstructed America” and also refers to “reverence for the First Amendment.” (136) He also suggests that Douglas is on weaker ground, from the standpoint of constitutional culture and popular acceptance, when he justifies Griswold on the basis of the right of privacy. But is the right of privacy any less central in our constitutional culture than freedom of speech? Many indeed have spoken of our constitutional culture as a “culture of choice.” Lawrence Friedman has written a major book about our “republic of choice.”

In my book, Securing Constitutional Democracy, I have argued that Griswold, no less than Brown v. Board of Education, is “a fixed star in our constitutional constellation”: after the Senate’s rejection of Robert Bork, every nominee to the Supreme Court has said, and has to say, that Griswold was rightly decided. I grant that law professors, especially those educated at Yale, are dubious about the right of privacy and confident about the First Amendment. I grant that specific right of privacy cases, like Roe, are controversial; but so are specific First Amendment cases, like the flag burning cases. And I would point out that we’ve come closer to amending the Constitution to overrule the flag burning cases than we have to amending the Constitution to overrule Roe or Lawrence. Moreover, I don’t believe that the right of privacy and the culture of choice is any less salient to an understanding of our constitutional culture than is the First Amendment. Let’s not forget that Robert Bork ran into more trouble in his Senate confirmation hearings for denying that the Constitution protected a right to privacy than he did for writing that the First Amendment protected only political speech.

B. Lawrence

Robert similarly suggests that in Lawrence, Justice Kennedy is “tempted to rebuild the right to privacy through the First Amendment,” for again, he believes that “the language of expressive liberty had the potential to foster broad social support” whereas the right to privacy is “more contested.” (137) He quotes Kennedy’s line: “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” (137) And he observes that the first three of these are tied to the First Amendment. (137)

But the heart of Lawrence is the same as the heart of Casey: a conception of individuals as having a right of personal autonomy to make certain decisions fundamentally affecting their destinies. Lawrence doesn’t need and doesn’t use the First Amendment any more than Casey did. In my book, Securing Constitutional Democracy, I present this commitment to protecting personal autonomy in terms of commitment to a fundamental theme of deliberative autonomy. I present the fundamental theme of deliberative autonomy, together with that of deliberative democracy, as the two bedrock structures of our Constitution and constitutional order. The First Amendment is but a manifestation of these two underlying structures. From the standpoint of my theory of securing constitutional democracy, the “freedom of thought, belief, and expression” in Kennedy’s formulation are aspects of individual liberty and autonomy, not aspects of the First Amendment apart from individual liberty and autonomy. Indeed, I’ve always read Barnette as being fundamentally about what Jackson calls “a right of self-determination,” which itself is an aspect of deliberative autonomy. It is not just about the First Amendment.

Thus, there is no need for Kennedy to do what Robert calls “the hard work of making lasting connections” between the First Amendment and the right of privacy. (137) The Court in Casey has already done the hard work of articulating the connection between liberty and personal autonomy that Lawrence invokes. To the extent that Lawrence needs anything more than liberty and personal autonomy, it is the idea that it demeans the existence of gays and lesbians not to recognize a right to privacy and personal autonomy for them that is analogous to the right of privacy and personal autonomy already recognized for heterosexuals in the line of substantive due process decisions. And Lawrence needs the idea denied in Bowers, that there is a “connection” and “resemblance” between the “intimate sexual conduct” of heterosexuals, on the one hand, and homosexuals, on the other. The First Amendment comes in only as itself a manifestation of the deeper commitment to deliberative autonomy.

Tuesday, May 5, 2009

Yale Author Night, May 21

The Yale Club of Washington, D.C., is holding a "Yale Author Night" on May 21, from 6:30-9:00 p.m. It will take place at the Charles Sumner School, 1201 17th Street, N.W., Washington, D.C., 20036.

The featured authors and books are:

Robert L. Tsai '97, Eloquence and Reason: Creating a First Amendment Culture

Bob Kaiser '64, So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government

Ronald Goldfarb '62, In Confidence: Confidential Communications and the End of Privilege

Each author will discuss his book and there will be a book signing afterward. The event is free, but the organizers ask that attendees register online.

Saturday, May 2, 2009

Portland, May 8

I will give a talk based on the book in Portland, Oregon, at 5:30 p.m. at the White Stag Building, 70 Couch Street. The talk is sponsored by the ACLU of Oregon and the American Constitution Society.

Refreshments will be provided, but the sponsors have asked that you RSVP to: or Kaitlan Monroe at 503-542-3106.

University of Oregon, May 6: Book Talk and Reception

The Wayne Morse Center for Law & Politics has organized a book talk and signing. Joseph Lowndes, University of Oregon, a political scientist and author of From the New Deal to the New Right, will offer comments.

The event will take place on May 6 from 4:00-5:30 p.m. in the Knight Library Browsing Room at the University of Oregon, 1501 Kincaid Street, Eugene, Oregon. Refreshments will be provided. Details here.

Friday, May 1, 2009

Jilting the President for Congress

Cross-posted at Legal History Blog:

An intriguing aspect of West Virginia State Board of Education v. Barnette involves the Justices' choice of partners in making the sale to the American public that the Constitution embodies a more robust right of individual conscience than what they believed a few years earlier. The background assumption many scholars work with today is that, all things being equal, the Supreme Court prefers not to go it alone, particularly when the institution anticipates controversy ahead. Robert Jackson's early drafts of the opinion suggest that his preferred partner originally was the presidency. This makes sense on a number of levels, given that executive branch officials had flooded the zone on the matter, Jackson and others may have honestly been swayed by their statements and actions, and independent reasons exist for thinking that the modern presidency enjoys an influential role in framing constitutional questions.

But Jackson at some point appears to have changed his mind during the opinion writing process, and the published opinion not only sought to erase the appearance of presidential cooperation but also gestured toward Congress. Sandwiched between two sentences in Barnette on the risks to the Constitution posed by overzealous local officials is this sentence: "The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation."

Note that the argument is only that the passage of a recent federal law and the existence of a textual commitment to Congress "contrast[] sharply" with a relatively minor claim by local officials to work in the federal interest, not that the federal law or Congress's power to raise an army is actually violated by a mandatory flag salute. In other words, a clash of federal and state interests is a strong suggestion rather than a firm conclusion.

What caused this aspect of the switch and what does it reveal?

The decision to swap partners merits further digging and rumination. For now, let me offer a few additional thoughts beyond my prior writings. First, the development may reflect no more than respect for formalism, since the administration was not a party to the action. On the other hand, DOJ was not present to defend the flag law or Congress's power to raise an army, either, so while formalism may explain in part a decision to jilt the presidency, it doesn't completely explain the Court's decision to take up with Congress. The argument that the federal flag law preempted conflicting state and local laws was made in the DOJ lawyers' article, pressed by the ACLU as amicus curiae below, and rejected by the three-judge panel that first heard the action—which means that the Supreme Court ended up watering down the argument, but found it useful anyway to imply federal-state friction. Still, at least the argument had already been made somewhere during the lawsuit.

Second, formalities aside, Congress is often an attractive partner because many Americans think of the legislative branch as most in tune with popular preferences. As an institution, it also has a hard time talking back in a single voice. Given the collective action problems involved in repudiating the Barnette Court's inconclusive assertion of a federal interest in all matters concerning the flag, the Justices may have felt it reasonably safe to imply that the Court and Congress were in accord on the matter. Since it hadn't issued a strong endorsement of Gobitis already, Congress was unlikely to do anything to shatter the illusion of Judiciary-Congress cooperation (though you can never fully predict a reaction to legal decisions).

Third, seeking cover behind legislative prerogatives may reflect some hangover effect from the New Deal years—including increased suspicion of presidential authority left over from the court-packing crisis. It is possible, of course, to argue that FDR was not nearly as popular in the 1940s as he had been in the 1930s. If this is true, then the contingent, oscillating nature of a particular office-holder's popularity may have affected the ultimate presentation in Barnette.

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