The language of the Supreme Court on the subject of words.
Oct 26, 2009, Vol. 15, No. 06 • By KEVIN R. KOSAR
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:
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.
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.
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.