Tuesday, June 23, 2009

Beyond the System

A central goal of Eloquence and Reason is to uncover the cultural-legal process by which constitutional ideas emerge as governing ideals. The book necessarily focuses on the actions of those who participate directly in the system: judges, politicians, lawyers, and activists.

But it's fair to wonder about the processes that largely escape the control of political or legal institutions. One of those domains is art. To what extent does art inform or disrupt constitutionalism? The intersection of popular culture and law is well worth mining.

Artists such as Langston Hughes bore witness to the New Deal and America's participation in World War II, two of Franklin Roosevelt's greatest achievements. In a new paper, Langston Hughes: The Ethics of Melancholy Citizenship, I analyze this twentieth century figure's poetry as a theory of democratic participation.

The abstract follows:
As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.
Image credit.

Thursday, June 11, 2009

Julie Novkov on Eloquence and Reason at Law & Society

Julie Novkov is Associate Professor of Political Science and Women’s Studies at the University at Albany, SUNY. Professor Novkov is the author of Racial Unions: Law, Intimacy, and the White State in Alabama, 1865-1954 (University of Michigan Press, 2009) and Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and New Deal Years (University of Michigan Press, 2001). With her permission, I reproduce below the remarks she gave on Eloquence and Reason at Law & Society on May 28, 2009:

Robert Tsai’s Eloquence and Reason contributes insightfully to the intersection of political and constitutional theory. As a political scientist myself, I am more familiar with the exploration of this intersection within my discipline, a tradition that began near the inception of political science in the late nineteenth century. But until recently, constitutional theorists addressing politics in law school environments had little interchange with political scientists addressing law from within the world of social science. On the political science side, this has begun to change through the writings of Mark Graber, Keith Whittington, Kenneth Kersch, Susan Burgess, Mark Brandon, and Rogers Smith, among others; Tsai joins legal academics like Sandy Levinson, Reva Siegel, Jack Balkin, and Mary Dudziak to carry on the other side of what has become a highly valuable and mutually rewarding conversation.

Eloquence and Reason
admirably accomplishes at least four important things that advance our understanding of the relationship between constitutional and political theory. First, it attends to the significance of rhetoric with a richly theorized understanding that seeks to explain what work rhetoric does. Second, it addresses the Supreme Court as an institution and proceeds through the analysis with attention to the Court’s institutional constraints and strengths. Third, the book develops a conception of change that goes beyond either simple doctrinal or political shifts. And finally, in part because it succeeds in the other three agendas, Eloquence and Reason brings in a more robust concept of culture than one usually sees either on the political science or law side of the conversation.

The book’s primary value for me, however, was that it raised new questions about constitutional law and constitutional politics. The first question related to Tsai’s conscious development of his argument in the context of the first amendment. His analysis of the first amendment was well argued and carefully developed, showing how the transformational uses of metaphor can be understood to mark both political and constitutional shifts. How much of this, however, is particular to the first amendment? If it is particular to the first amendment, why? Should we look to the structural role that the first amendment has played in American history? (And note that here, one might turn to Mark Graber’s pathbreaking work, Transforming Free Speech for a broader analysis of speech in the context of the progressive and post-progressive moments.) How much of the analysis relies upon the reflexivity inherent in a discussion of the mechanics of persuasion in the context of persuasion that is itself about speech?

Second, I appreciated Tsai’s thoughtful reading of foreign relations struggles as an organic and central part of constitutional law, rather than a separate and isolated field of inquiry. He requires us to recognize that foreign affairs politics and jurisprudence interweave domestically in ways that we miss when we separate them. And he takes up an insight that spans both law and political science (see, e.g., Klinkner and Smith 2001, Kryder 2000, Dudziak 2000) about the expansion of freedom and civic membership that took place during the World War II era. I found myself wondering, however, how much of the political and constitutional leveraging of membership took place because cultural and political outsiders remained as points against which leverage was possible. As Tsai recognizes, Jehovah’s Witnesses gained the embrace of civic belonging and African Americans become the objects of expansive civil rights rhetoric and politics. But at the same time, Communists were pushed out and lost both politically and legally, as did women and Japanese Americans. This raises a troubling question: does there have to be an alien, an other, an outsider for this process to work?

The third way in which the book pushed me to ask new questions was around Tsai’s analysis of metaphors. Much of his argument rested upon the idea of metaphors as a key site for analysis in understanding constitutional transformation. He brilliantly lays out the political and constitutional shifts that tie in with changing uses of fire metaphors with respect to speech and wall metaphors with respect to religion. This analysis is quite valuable in changing how we mark periodization and define periods when we think about constitutional development as a political process. It also enables the tracing of core concepts through moments of stasis and transformation. However, it raises more questions about metaphors. What about metaphors that seem to be stable over time – those that remain in use but do not seem to transform (think, for instance, of the metaphor of chilling)? Second, how do we know that a metaphor used on the same side of a case is itself stable? Tsai notes that metaphors themselves are deeply culturally embedded, and more exploration of this phenomenon might be worthwhile. Finally, what do we do with metaphors that are not in common usage over a period of years but pop in and out? The premiere example here would be colorblindness. When are such metaphors the same – or different – conceptually, not just jurisprudentially?

Finally, one quibble about a small point in the book led me to a larger set of questions. Tsai describes Scalia’s use of the metaphor of culture wars in Romer v. Evans, one of the most vivid and memorable parts of his dissent. Tsai notes that Scalia did not just invoke culture wars, but extended the metaphor to describe a battle between elitist liberal legal knights of the bar and bench and their struggle against the down-to-earth sensible commoners who voted for the discriminatory amendment at issue in Romer. Tsai’s point is that Scalia uses the metaphor to set up dualistic conflict with the elite intellectuals as the oppressors and the common, humble, value-driven majority as the aggrieved. I would push the analysis one step further, recognizing that Scalia’s move is more subtle. It successfully erases the actual subjects, the lesbian and gay individuals who are much more than either a game piece or a symbolic standard in a cultural war. This observation circles out to a bigger question about “the people” and “the judges” (and likely reflects my own disciplinary biases). Toward the end of the book, Tsai writes eloquently about the struggle of the courts to situate themselves properly in their role as persuaders, purveyors of eloquence and reason. This may be too simple, indeed it is simpler than Tsai himself describes earlier in the book, where he begins to acknowledge the complex mediation of “the people’s” voice by and through the state. Constitutional development is about law and judging, but it is also about mobilization and countermobilization. Just as Mark Graber and George Lovell have taught us that the state does not necessarily speak in a definitive and unified way that represents the will of the people (Graber 1992; Lovell 2003), scholars like Tom Keck are complicating how we think of social movements and legal mobilization to portray a conflictual and multivocal world (Keck 2004). Ultimately, this leads me to conclude that eloquence may exist, but it is not sui generis. We must recognize the political groundwork that goes into generating the political conditions under which particular kinds of eloquence will be resonant – whether this is eloquence that serves Jehovah’s witnesses or eloquence that seeks to re-embed conservative Christianity as the core background cultural framework for American civic life.

Ultimately Eloquence and Reason shows us in a convincing fashion that it’s important to study rhetoric and persuasion. To extend this study, I would advocate for a deeper analysis of the role of power relations in this process. We must always keep sight of the institutionally and historically embedded power relations as they silently structure what we understand as persuasive rhetoric.

Monday, June 1, 2009

Will Sotomayor Be the New Rutledge?

As some academics and court watchers wonder whether Judge Sonia Sotomayor is a first-rate intellect or a legal visionary, I couldn't help but think back to Franklin Roosevelt's selection of Wiley Rutledge for the Supreme Court in 1943. Few analogies are perfect, but consider some similarities. Rutledge, like Sotomayor, was a sitting judge on the federal court of appeals. Although he served on the D.C. Circuit, he spent many years West of the Mississippi and was touted as a diversity candidate—i.e., he would improve geographic diversity to the Supreme Court. Additionally, Rutledge found himself pitted against other candidates, most notably Learned Hand, with strong advocates (including Felix Frankfurter) hoping for a brilliant addition to the High Court.

Supporters of Rutledge, including Francis Biddle, needed to counter Learned Hand's stellar legal bona fides. They made three arguments to Roosevelt and others. First, at 71, Learned Hand was too old to have a significant impact on the Supreme Court. Beyond presidential legacy, some also argued that appointing a someone advanced in years exposed FDR to charges of hypocrisy after his court-packing initiative.

Second, Rutledge had the chops to do the Court's business. A memorandum by Herbert Wechsler arranged by Biddle argued that Rutledge's legal opinions were sometimes overwritten, but nevertheless demonstrated a "soundness of judgment, a searching mind, a properly progressive approach to legal issues."

Third, as John Ferren recounts, Rutledge came to be perceived as a "trusty liberal." What, exactly, did that mean? The obvious part is that he would not wreck the New Deal, something Wechsler pointed out. But I think it meant something more to liberals within the administration hoping to make more inroads on questions of civil rights and liberties. Wechsler pointed out "civil liberty problems" among those Rutledge handled as a judge, and concluded that "his work leaves no room for doubt that these values are safe in his hands." Biddle described Rutledge as "a liberal who would stand up for human rights, particularly during a war when they were apt to be forgotten."

Today Rutledge is never mentioned in the same breath as Cardozo, Brandeis, or Holmes. But consider what he achieved in his six years on the Court. Rutledge authored Thomas v. Collins, an overlooked decision involving union organizing that provided an important link between the solitary speaker model of free expression and the group advocacy model that we now recognize. He voted to overrule Gobitis. On those occasions Robert Jackson or Hugo Black preferred a narrower reading of the First Amendment, such as Jones v. City of Opelika or Terminiello v. Chicago, Rutledge often provided an important vote for free speech protections. He authored Kotteakos v. U.S., which helped define "harmless error" review in criminal appeals involving non-constitutional claims. Rutledge dissented in Everson v. Board of Education, arguing that the Establishment Clause forbade public funds to be spent on transporting children to parochial schools. However, he joined Black's majority opinion in Korematsu v. U.S. upholding the wartime internment of persons of Japanese ancestry.