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.
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