Eloquence and Reason Reviewed in Perspectives on Politics

Beau Breslin, a political theorist at Skidmore College, has reviewed Eloquence and Reason for Perspectives on Politics.  He writes:

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.

Walker Reviews Eloquence and Reason for H-Net

Professor Anders Walker, a legal historian at St. Louis University School of Law, has reviewed Eloquence and Reason for H-Net, a listserv for historians.  He writes:

Robert L. Tsai's Eloquence and Reason provides an interpretation of First Amendment jurisprudence that is at once nuanced, novel, and compelling. More than presenting simply a history of litigation strategy or Supreme Court politics, Tsai focuses on language, positing that freedom of speech is "a distinctive way of life" and "a sophisticated system of devotional practices," not unlike the "webs of signification" that Clifford Geertz associated with culture. Animating free speech culture, argues Tsai, are certain inspired rules of rhetoric, or what sixteenth-century political theorist Thomas Wilson called "precepts of eloquence." Such precepts, continues Tsai, not only "set fire to reason" as Oliver Wendell Holmes famously noted, but also elevate constitutional discourse from mere assertions of brute power to discursive constructs that simultaneously define Americans even as they bind them, ruler and ruled alike. . . . Perhaps the most striking aspect of Tsai's book is its sophisticated use of cultural/linguistic analysis in the service not of deconstruction but of formation, a topic that may even be of interest to political scientists and socio-legal scholars.

The rest of the review can be found here.

Political Communication Reviews Eloquence and Reason

Kevin Barnhurst and John Nerone, communications experts at the University of Illinois-Chicago and University of Illinois-Champaign respectively, have reviewed Eloquence and Reason for Political Communication.

From the review: "Tsai follows Foucault in seeing history through discourse but also finds political bonds of affection originating in the intent of the American founders. In the 20th century, discourse sustained the First Amendment as an icon in the American political imagination. . . . Tsai offers political communication scholars another lens . . . for examining expressive liberty in action."

The rest of the review can be found here.

Voice of America Interview

Listen to an interview conducted by Voice of America about Eloquence and Reason.

Choice Reviews Eloquence and Reason: "Highly Recommended"

M.W. Bowers of the Political Science Department at University of Nevada, Las Vegas reviews Eloquence and Reason for Choice (July 2009):

Tsai (law, American) posits the goal of this work as employing the First Amendment as a "case study to illustrate that liberty is not an end state but a state of mind achieved through the formation of a common language and a set of organizing beliefs."  The author achieves his goal admirably in a densely packed book utilizing political theory, history, law, political science, philosophy, and historical examples including religious conservatives' response to the Warren Court on church and state and the activities of the Civil Rights Movement.  Perhaps most noteworthy, however, is Tsai's rejection of the translation model of judicial review, "in which a jurist's primary duty is to discern an earlier generation's original intentions or expectations" in favor of a facilitation model, which "calls for attention to the social plausibility of readings of text," and the evidence he provides in favor of that position. . . . Highly recommended.

Michael Kent Curtis Reviews Eloquence and Reason

Michael Kent Curtis of Wake Forest University School of Law reviews Eloquence and Reason for the Northwestern University Law Review. Among other thoughtful criticisms of this "remarkable book," Professor Curtis wonders whether linguistic transformations in First Amendment law are "simply . . . an indicator that constitutional change is taking place" rather than an account of that change. He finds that Tsai's theory of linguistic regimes "has undoubted descriptive value," but wants to know more about how external forces shape a regime, how a regime affects interpretation, and to what extent it is actually correlated to popular will.

Even so, the book's insights regarding "the role of rhetoric in constitutional development are richly illustrated by examples from free speech law." Professor Curtis concludes:

This book, with its illuminating emphasis on rhetoric and metaphor, is of great value for lawyers, for all who study the law, and for ordinary people as they construct and employ arguments about our fundamental rights. Whether or not one accepts Professor Tsai's conclusion that constitutional discourse inside and outside of the courts is and should be a form of politics, his study has implications for all who care about constitutional issues. The struggle to preserve or advance a constitutional vision cannot safely be left to judges. It is a struggle in which all citizens have an interest, and all have a legitimate role in the dialogue. That is a central point of this very fine book, and it is a point we should never forget.

To read the full review, go here.