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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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.