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.

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