The Magazine

Speaking Freely

The language of the Supreme Court on the subject of words.

Oct 26, 2009, Vol. 15, No. 06 • By KEVIN R. KOSAR
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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 in Dred Scott v. Sandford (1857) that blacks were not citizens. Nonetheless, I had faith that the Court usually would divine the truth.

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

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes â s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a â marketplace of ideas. â When one metaphor ceases to provide the desired results, the Court crafts a new one.

Stanley v. Georgia (1969) is a particularly colorful example of this phenomenon. Law enforcement agents raided the home of Robert Stanley, suspecting that this bookie was up to his old tricks. They found no gambling materials, but the police did discover some pornographic films. Stanley
was arrested, tried, and convicted for violating a state statute forbidding the possession of â obscene matter. â

After losing in Georgia â s Supreme Court, Stanley appealed to the U.S. Supreme Court, complaining that Georgia â s law violated his freedom of speech. Prima facie, the case looked like a sure loser for Stanley. The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Can anyone say, with a straight face, â Why yes, the denotations of the words â freedom of speech â clearly encompass the possession of pornographic films â ?

Well, the Court did. With the sexual revolution unfolding, Tsai writes, the justices decided to expand the meaning of freedom of speech: â Instead of openly acknowledging their desire to be culturally responsive, the Justices refashioned doctrinal rules . â â . â â . to account for social change. â Tapping into popular anxiety over Soviet authoritarianism, the Court roared:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men â s minds.

The absurdity of the Court â s position is multifold. State and local morals statutes are older than the American republic. Like them or not, blue laws and the like are part of America â s political heritage. And are we to believe that all the Americans who had lived under morals laws were the victims of mind control? Additionally, to lump porn in with literature and political tracts is sophistry: Banning the Federalist Papers is hardly the same as forbidding the possession of blue movies.

The average reader might feel outrage at such legislating from the bench. Tsai, though, is untroubled. Not only is this the way the Court does its work, Tsai thinks that this is the way the Court should do its work. He makes an anthropological argument for a creative, activist Court.

Legal rights do not naturally occur; they are a creation of society to identify, particularize, and perpetuate interests deemed valuable to political self-understanding. In the absence of a culture of respect for such rights, they are worth no more than the paper they are printed upon.

As Tsai sees it, the Supreme Court fosters America â s political culture and commitment to liberty by intervening in contentious social matters and issuing metaphor-loaded decisions that explicate the tenets of our civil religion.

As a product of political culture, metaphor can be understood as an element of democratic design writ small, a method of presenting a community â s governing precepts so as to maximize popular consumption. To the extent its vividness stimulates reflection, such a composition facilitates the internalization of foundational principles and guards against erosion of the political order from within.
Hence, the Court renews our faith in America by prodding us to think about the meaning of the Constitution and how to live under it.

Tsai â s argument is smart, but it has at least a few problems. First, there is the matter of competence. He presents no evidence to persuade the reader that the Supreme Court is well qualified to take the national pulse, let alone devise solutions to complex problems of governance. May a town prosecute parents who deny their children medical care because they believe in faith healing? All Tsai offers is that jurists bring â expertise, knowledge, and a historically situated perspective in determining how to synthesize governing traditions and which discursive trends to validate. â

Second, his argument is predicated on the assumption that the public needs its belief in liberty renewed through provocations by the Supreme Court. Does it? Let us not forget: The Court considered very few cases involving the Bill of Rights before the 20th century. Yet there is scant evidence to suggest that our forebears did not â get â liberty. They were socialized through other means.

Third, Tsai states that his â principal aim â is to â present a general theory to explain how the words in the Constitution ratified by a distant generation become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. â But he little discusses the 14th Amendment, the main vehicle through which the Court has thrust itself into First Amendment and civil liberty controversies.

The Bill of Rights was designed to apply to the federal government alone, and Chief Justice John Marshall was succinct on this point: â These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them â (Barron v.
Baltimore, 1833). But 80 years ago the Court began demolishing that aspect of federalism by redefining the 14th Amendment â s due process clause, which forbids states from depriving â any person of life, liberty, or property, without due process of law. â In audacious opinions thick with metaphors and political theorizing, it explained that the words â due process â were synonymous with the First Amendment and most of the rest of the Bill of Rights. Any treatment of the creation of a national First Amendment culture needs some coverage of this development.

Tsai contends that an activist Court â s use of metaphors fosters civil society. But as Tsai well knows but little discusses, metaphors can also have corrosive effects. When the Court conjured up a â wall of separation between church and state â from the First Amendment â s establishment clause (Everson v. Board of Education, 1947), it took a squabble in New Jersey and nationalized it. The country became embroiled in divisive religious debates: May a cr che be erected in front of city hall? Should the Constitution be amended to permit prayer in public schools? Sixty years have passed, and the bitter disputes continue. Lawyers are enriched by this; are We, the People?

Last, there is the matter of reverence for the Supreme Court. The public respects the Court and its decisions because it believes justices are smart, apolitical, impartial experts who do their darnedest to apply the law, not make it. True or not, this perception is an integral part of our belief in our system of government.

This makes the Court â s activism and profligate use of metaphors problematic. Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court â s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word â speech â no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.

Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent in McCollum v. Board of Education (1948): â A rule of law should not be drawn from a figure of speech. â

Kevin R. Kosar is a writer in Washington.