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.

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.

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.

Law & Politics Book Review

Eloquence and Reason has been reviewed by the Law & Politics Book Review. The reviewer, Ruthann Robson of CUNY Law School, focuses primarily on the book's analysis of metaphor and its treatment of Lawrence v. Texas, which draws on First Amendment ideas in the exposition of the right to sexual autonomy.