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.

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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 Lowndes

At the end of his many generous comments about Eloquence and Reason, Professor Lowndes poses four incisive questions meant to test the book's theoretical implications. First, Joe wonders whether there are certain unalterable baselines or preconditions for the model of constitutionalism to work, such as a liberal commitment to property rights. He correctly observes that the book's theory of constitutional change as linguistic transformation is intended to be supple and descriptively accurate without giving up on the possibility of constraints. The answer about minimal conditions is an important and unfinished part of the project.

I focus on structural constraints such as institutional consensus and cultural practices (e.g., ways of talking about constitutional rights and political beliefs). To the extent that facility with language is important, one's ability to acquire the basic tools necessary to participate meaningfully in deliberation (and thereby sustain a constitutional culture) ought to be made a system-wide priority. I wouldn't exclude the possibility that some minimal rights could be part of every citizen's toolkit, such as those fostering autonomy and the capacity to deliberate, but my inclination is to see property rights regimes more as particular manifestations of liberalism (of which there are many) rather than as necessary to democratic constitutionalism itself.

Joe astutely notes that much constitutional law is driven or constrained by the preferences of political elites. This is true. Any model that hopes to have explanatory power while resembling the American system must account for: (1) an original design decision to make it difficult to alter the system in a profound manner; and (2) our particular history, which is littered with those who failed in their efforts at political transformation. There must be some convergence of political beliefs and instrumental reasons for acting before lasting change can occur. The challenges faced by those interested in regime change prove to be a source of endless frustration, but essential to test the claims of the many who would stake a claim to govern based on the Constitution. It's not easy to re-write the Constitution, nor should it be.

Second, Joe wonders whether repeated invocations of an imaginary "people" obscures divisions based on race, culture, and income. My answer is yes, though to some extent this must happen. Obscuring or suppressing differences is important to the project of creating community over time, and it is especially necessary if one is interested in pursuing a transformative agenda. This is true whether a president is attempting to rally the public or an activist is seeking to promote racial equality. At the same time, I want to stress that democracy can only work if citizens are capable of nurturing a dream that departs, sometimes painfully, from their daily existence. A critical faculty, therefore, is essential to what I have called "rhetorical autonomy": each citizen's sovereign authority to challenge, contest, or reject official interpretations of the Constitution. In reality, I think most Americans understand the difference between an imagined America based on mutual aspirations and one that is rife with inequality and difference.

Third, Joe notes that the model of linguistic transformation depends on boundaries between lawful popular action to interpret the Constitution on the one hand, and mob activity or violent revolution on the other. He worries (and rightly so) that judicially-sanctioned boundaries may be too constraining in the face of severe deprivation. My efforts on this point are a partial answer to popular constitutionalists, a number of whose work suggest that all out-of-court actions to make sense of the Constitution are equal. A distinction between legitimate and illegitimate ways of constructing the constitution through popular means is predicated on an existing written Constitution as well as acceptance of certain rule-of-law values, two of which are reason and necessity. As I suggest in Chapter Four when I discuss how the Justices reshaped First Amendment law to accommodate peaceful civil rights protest, even rule-of-law boundaries are contestable by those in dire straits, though I think they cannot be ignored—unless we find ourselves in a truly revolutionary break, in which case institutions no longer constrain and the most settled founding ideals are up for grabs.

Fourth, Joe urges investigation of other democratic actors beyond individuals and social movements. I shall take up his invitation. One of the things illustrated by Joe's work is the darker side of popular culture sustaining our democratic discourses. It's undeniable that the same mobilized war discourse that fostered incremental gains on race and religion in the 1940s and 50s also was harnessed to ostracize dissidents such as communists, certain sectors of the labor movement, and other perceived foreigners. These events, too, are part of our constitutional culture. The challenge going forward is to integrate the darker aspects of a linguistic regime with its official and aspirational features. Which beliefs and actions are unfortunate but unavoidable, and which aspects of a governing regime can participants reasonably resist? The answers are not purely of academic interest, for they are likely to guide everyday decisionmaking.

Robert Jackson's Memo to FDR on Gobitis

Cross-posted at Legal History Blog:

On June 3, 1940, then-Attorney General Robert Jackson authored a memo to President Franklin Roosevelt, as was his practice, discussing the various Supreme Court decisions in which the United States had an interest. Jackson singled out Minersville School District v. Gobitis, even though the United States filed no brief in that case.

He wrote:

Among the decisions of the Court in non-Government litigation the one of most interest was that in Minersville School District v. Gobitis. In this case, the Court, in an opinion by Mr. Justice Frankfurter, held that the School Board could constitutionally exact a salute to the flag, even though the child was a member of the sect which believed the salute to be idolatrous worship of a man-made object or institution. The Court paid eloquent service to the principle that "the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law." But, the Court said, "the mere possession of religious convictions * * * does not relieve the citizen from the discharge of political responsibilities." Salute to the flag the Court considered to be a relevant requirement to obtain that "national unity" which "is the basis of national security." Mr. Justice Stone dissented. He recognized the power of government to control conduct notwithstanding religious scruples but thought the guarantee of religious freedom forbade the legislature to "compel public affirmations which violate * * * religious conscience."

Although one must be careful not to read too much into a synopsis, it is interesting how Jackson characterized the outcome. First, he framed the Witnesses' claim in a charitable light. Second, Jackson never mentioned the overwhelming nature of the decision, which was 8-1. Third, he didn't endorse the determinative rationale, which he put strictly in the mouths of the Justices; instead, he praised only the ruling's "eloquent" affirmation of the idea that one's "convictions" reached in the pursuit of life's mysteries lie "beyond the reach of law." Fourth, he gave equal time to Stone's dissent, which stressed the importance of "religious conscience."

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What Caused the Supreme Court to Change Its Mind on the Flag Salute?

In Chapter Five of Eloquence and Reason, I consider the ways in which war has altered how we talk about the First Amendment. A linchpin of the post-World War II order is the case of West Virginia State Board of Education v. Barnette, which vindicated the right of objecting Jehovah's Witnesses to refuse to salute the American flag. I have authored an article, Reconsidering Gobitis, that develops themes in the book by drawing on more extensive archival materials.

Cross-posted at Legal History Blog:

The question of causation is notoriously difficult to assess, in law as in history. The legal system's goals of fashioning incentives just-so and compensating injured parties demand that participants assign responsibility. Judges and juries identify the "proximate cause" or "motivating factor" because, in a sense, they must. In history, no normative enterprise need constrain one's investigation of cause and effect. Often, one can be satisfied by merely showing that some underappreciated factor had a part in human affairs.

When it comes to constitutional history, pressing a bit harder on the relationships among causal factors can yield insights as to how the political order operates. We might wish to know the relative power political and legal actors have in practice, the social conditions under which an influence on the law can be exerted, and the tools available for acts of constitutional meaning-making and transformation.

A fascinating case study can be found in the U.S. Supreme Court's switch on the constitutionality of the coerced flag salute in the early 1940s. As America geared up for war, the Justices originally held in Minersville School District v. Gobitis that national unity counseled against recognizing a First Amendment right to refuse to salute the American flag. Three years later, the High Court abruptly reversed course, concluding in the famous Barnette case that respect for pluralism and individuality favored vindicating the Jehovah Witnesses' claim.

What best explains the sudden change? Two of the stronger explanations for the switch involve the wave of terror against Jehovah's Witnesses after the first ruling, vividly documented by Shawn Francis Peters; and changes in the Court's personnel in the intervening years (as analyzed in numerous judicial biographies).

In Reconsidering Gobitis: An Exercise in Presidential Leadership, which is hot off the presses, I offer an alternative account: the extra-judicial words and deeds of the Roosevelt administration played a significant role in the Supreme Court's turnabout. These actions signaled that the right of conscience was a presidential priority and framed such a right as the legacy of a just war. No brief was filed by the United States government in either lawsuit, but archival documents show that Robert Jackson kept FDR apprised of developments in Barnette. Department of Justice lawyers authored an article laying the extra-legal violence against the Jehovah's Witnesses squarely at the feet of the Supreme Court, urging the Justices to undo the damage by reversing themselves, and suggesting that such a corrective would implement the president's agenda, "The Four Freedoms." Speeches by key aides emphasized religious liberty and conscience, all while denying public support to Gobitis; these speeches were prominently quoted by the litigants. Finally, Robert Jackson's early drafts of Barnette suggest that the Justices and law clerks were aware of these executive branch efforts, though most of these references were later excised or downplayed during the opinion writing process, effectuating an erasure of presidential action.

Who has the better of the historical argument? What lessons can be drawn if we view this sequence of events as a sophisticated exercise in what Keith Whittington calls "political construction" of the Constitution?