Robert Tsai on ‘Eloquence and Reason’

A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai – Eloquence and Reason: Creating a First Amendment Culture.  Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a lively, provocative essay, though I don’t really feel competent to comment on the content deeply.

One thing I will say, though, is that I appreciate both the quality of writing in this essay, even as a non-expert, and also appreciate very much the method of the humanities that it represents.  I have thought that traditional methods of the humanities – the interpretation of text in its linguistic as well as historical richness – has suffered somewhat in legal scholarship in recent years under a certain economics-oriented reductivism.  That’s a broader topic for a different day, however.  But Robert Tsai is a gifted writer and thinker, and even as (maybe especially as) a non-specialist, his book is a pleasure to read.

The comments to my original post, in particular Orin’s question about results and rhetoric, caused me to go back to Robert Tsai and ask if he might give us a short statement on the book, and say something about the interpretive question.  Robert was kind enough to do so, and so I am putting up his short response here.  Robert – our thanks for joining us here at Volokh with a contribution!

Many thanks to Ken and everyone at the Volokh Conspiracy for the opportunity to say a few words about Eloquence and Reason.  The book examines First Amendment law as a cultural system: not simply a collection of legal decisions or even a normatively desirable set of substantive commitments, but also a shared political belief system and popular vocabulary.

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision.  Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted.  Judges have always played a role in this social process, even if theirs is rarely the last word on a subject.  There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

Eloquence and Reason examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom.  Then, as now, each party to a constitutional debate claims to bear the “authentic” or “correct” reading of the text.  Because my model of constitutional change is agnostic to political ideology, it allows anyone to try to speak on behalf of the people and their charter.  For the most part, such claims are filtered through existing institutions.

Two episodes taken up in the book may interest readers of this blog.  The first involves a wartime turnabout on whether the First Amendment should prevent public schools from punishing a student for refusing to salute the American flag.  Laying Gobitis (1941), where the Justices said no, and Barnette (1943), where the Justices changed their minds and said yes, side by side shows very different worldviews.

The first ruling prized unity, majoritarianism, and ritual nationalism enforced at the local level; whereas the second decision valued individual dissent, pluralism, and uncoerced political attachments.  Drawing on speeches and writings by FDR and high-ranking officials, as well as unpublished drafts of the Barnette decision, I argue that out-of-court statements had an impact in publicly recasting the constitutional stakes in the dispute.  The administration blamed the Supreme Court’s Gobitis decision for the persecution of Jehovah’s Witnesses and urged the Justices to overrule themselves.  Officials also aggressively presented the very values eventually ratified in Barnette, signaling that such values were crucial to the post-war legal and international order.  And they are to this day.

A second episode has to do with the Anti-Establishment Clause.  The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace.  As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.

Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process.  Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations.  Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.

A word about the causal connections between language, motivations, and outcomes [going to Orin’s comment/question – KA].  The mere existence of a legal discourse does not compel any particular outcome in a dispute.  That would run counter to the idea of “rhetorical freedom,” which even the Framers acknowledged would continue after the Constitution’s ratification.  Whatever a party’s instrumental reasons for taking position X, constitutional language circumscribes the range of options available for portraying X as a defensible position, thereby limiting the range of linguistic options.  Broader shifts in constitutional language reveal changes in a nation’s political beliefs, institutional priorities, and even how a community sees itself.