Eloquence and Reason
Creating a First
Amendment Culture
by Robert L. Tsai
Yale, 216 pp., $45

As a schoolboy I had textbooks with photographs of the justices of the Supreme Court. In their black robes, they looked so very old and serious. What little information the books provided about these people stoked my reverence. They hailed from Harvard, Stanford, and other places far away from my hometown in Ohio, places populated with brilliant people who became the powerful people who appeared on the nightly news show that my mother and I watched â "senators, diplomats, and the rest.

Many nights I went to bed dreaming that one day, maybe, I could be a Supreme Court justice. I wanted to sit in one of the high-backed chairs on the dais as attorneys debated whether a particular statute offended the Law of the Land. I imagined myself at the center of terrific logical exchanges, parsing the precise language of the Constitution and analyzing the facts of a case. Ultimately, we the Court would come to a super-rational explanation that would irrefutably decide the matter for all time.

I understood that not every case had an easy answer. The Fourth Amendment forbids â unreasonable searches and seizures. â But what constitutes a search? May the FBI use infrared technology to peer into a home without obtaining a warrant? And I knew that the Court had goofed on occasion, such as when it decided

Neither my schools nor my local library carried the United States Reports, the repository of Court decisions, so I did not read any Supreme Court decisions until I reached college. When I did, I found many of them shocking. Instead of providing an exegesis and an application of the Constitution, justices were armchair-philosophizing about the nature of America and her system of governance.

When I read Palko v. Connecticut (1937), which featured a crook twice convicted in Connecticut for the same murders, I felt like digging up Justice Cardozo and barking at him, â What the devil is a â scheme of ordered liberty â and where do you find such words in the Constitution? â With just a single course in philosophy under my belt, I could identify fallacies and slippery rhetorical maneuvers in opinions. The scales fell from my eyes.

Reading Robert Tsai â s provocative Eloquence and Reason, I am reminded of the experience of losing my na -vet in things legal. Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment â s prohibition against making a law â respecting an establishment of religion. â