Robert L Tsai

Notes on Borrowing and Convergence

Robert L. Tsai et al. — Sun, 06 Nov 2011 17:59:40 PST

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Aryans, Gender, and American Politics

Robert L. Tsai — Wed, 24 Aug 2011 14:44:39 PDT

This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of cultural, legal, and political transformation. It is drawn from "Defiant Designs: America's Forgotten Constitutions" (forthcoming, Harvard, 2012)

Book Review of Beau Breslin, "From Words to Worlds: Exploring Constitutional Functionality"

Robert L. Tsai — Mon, 16 Aug 2010 07:37:03 PDT

This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.

John Brown's Constitution

Robert L. Tsai — Tue, 13 Jul 2010 13:58:03 PDT

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained committed to basic notions of democratic self-rule. Rather than call Brown simply a terrorist or a common criminal, it is more accurate to understand him as a practitioner of “fringe constitutionalism,” in which a patriot turns to unconventional, even violent tactics, on behalf of deep governing principles. The individual straddles traditional cultural and legal categories, taking advantage of such complexities in the name of constitutional transformation.

The Ethics of Melancholy Citizenship

Robert L. Tsai — Thu, 18 Jun 2009 20:17:08 PDT

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.

Constitutional Borrowing

Nelson Tebbe et al. — Tue, 21 Apr 2009 16:35:09 PDT

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Sovereignty as Discourse

Robert L. Tsai — Sun, 08 Feb 2009 16:18:57 PST

This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.

Conceptualizing Constitutional Litigation as Antigovernment Expression: A Speech-Centered Theory of Court Access

Robert L. Tsai — Thu, 05 Jun 2008 14:17:26 PDT

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for prisoners may recover - violates the right of access to the courts.

The System Worked: Our Schizophrenic Stance on Welfare

Robert L. Tsai — Thu, 05 Jun 2008 12:22:19 PDT

This is a review of Steven M. Teles's book, Whose Welfare? AFDC and Elite Politics (University Press of Kansas, 1996), which argues that welfare policy reflects a dynamic of elite dissensus, in which public policy fails to reflect popular opinion. I make two central points in the review: first, there are reasons to believe that welfare policy does, in fact, reflect a deeply conflicted American electorate; and second, such a conflict may reveal a healthy deliberative order struggling to reconcile changing priorities with enduring values.

Eloquence and Reason: Creating a First Amendment Culture

Robert L. Tsai — Thu, 08 May 2008 11:38:20 PDT

This book presents a general theory to explain how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. "Eloquence and Reason" employs the First Amendment as a case study to illustrate that liberty is achieved through the formation of a common language and a set of organizing beliefs. The book explicates the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are best understood as the results of broader linguistic transformations. Drawing on the ratification debates, "Eloquence and Reason" concludes by advancing a model of judicial review in which jurists are responsible for the management of political discourses and the empowerment of other participants to a public debate, quite apart from any substantive obligations they may have to the legal order. The Table of Contents and Preface are available for download.

REVIEWS:

"Just when I thought that there was nothing new to say about the First Amendment, Robert Tsai comes along and writes a book which encourages me to think again."—Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

"A provocative meditation on the ways metaphors used in constitutional doctrine empower, limit, create, and recreate the public over which the written Constitution is said to assert authority. Intriguing case studies arise from the civil rights movement of the 1960s, the Christian Right of the 1980s, and the attacks on Jehovah's Witnesses in the 1940s."—Mark V. Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

"Tsai's exciting work on the interplay between the Supreme Court and the executive branch over free speech issues in the nineteen forties sheds new light on the origins of modern constitutional law. His new account of the relationship between language and power in political discourse is sure to be controversial and should be widely read."—H. Jefferson Powell, Professor of Law, Duke University, author of Constitutional Conscience: The Moral Dimension of Judicial Decision

"This beautifully written, carefully argued, and thought-provoking book illuminates the way the practice of free speech and broad societal engagement with constitutional ideas animate American democracy."—Mary L. Dudziak, Judge Edward J. and Ruey L. Guirado Professor of Law, History, and Political Science, University of Southern California, and author of Exporting American Dreams: Thurgood Marshall's African Journey

Speech and Strife

Robert L. Tsai — Sat, 25 Aug 2007 23:52:50 PDT

The anthropologist Clifford Geertz once observed that “[a]t the political center of any complexly organized society . . . there is both a governing elite and set of symbolic forms expressing the fact that it is in truth governing.” In the spirit of Geertz’s remark, I endeavor to capture the subtle, inventive, and self-retrenching ways in which the Supreme Court employs language to signal how we ought to think about its authority. Now that the Rehnquist Court has reshaped the constitutional topography in earnest, we would do well to examine its rhetorical legacy as scrupulously as its substantive record. As the Judiciary has proven itself to be remarkably assertive and imaginative in employing First Amendment rhetoric and symbols to carve out and sustain its sphere of influence.

Fire, Metaphor, and Constitutional Myth-Making

Robert L. Tsai — Sat, 25 Aug 2007 23:43:54 PDT

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court’s decision. At the same time, it contends that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but also promotes acceptance of interpretive prerogative and creates sustainable constitutional subcultures, with their attendant myths, counter-narratives, hero figures and villains, and sacred mantras. It links citizens to governing institutions, and bridges diverse communities of interest. Metaphor is bound up with the motivations of the Justices and the development of legal doctrine, and marks the steady ascendancy of the American Supreme Court to the center of cultural and legal life. To illustrate these themes, the article examines the appearance of the fire metaphor and fire-inspired legal sayings in the Court’s free expression rulings over time, drawing on the work of cultural anthropologists, legal theorists, and cognitive linguists. Launched in early speech decisions involving socialist ideology, and reinvented in more recent cases involving cross-burning and the Internet, the fire motif has had a long pedigree. By tracing the Court’s invocation of fire across the decades, we can uncover a wealth of information about the interaction between rule and myth, legal doctrine and symbol. Born in the early part of the Twentieth Century during turbulent times, the fire metaphor has enjoyed an integral role in the construction of our free speech folklore. Across historical epochs and amid social upheavals, it has alternately collaborated with and jousted with other free speech metaphors and icons. The curious life of this remarkable, though often overlooked, language composition tells us much about the institution of the Court, our modes of constitutional discourse and myth-making, and the interactive nature of legal change.

Democracy's Handmaid

Robert L. Tsai — Sat, 25 Aug 2007 23:32:17 PDT

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Professor Tsai draws from the two disciplines to reach new insights about the democracy-enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this model, metaphors, metonyms, and other idioms serve as integral features of democratic institution-building. An especially resonant metaphor spreads democratic ideology efficiently and aggressively. The composition helps to create the appearance of political rule as continuous and timeless. It also renders law accountable to the people – by reestablishing the terms of community through this language device in the course of litigation and public debate, ordinary citizens can redirect the very path of higher law. In short, popular language legitimates constitutional regimes and builds support among the people themselves.

Sacred Visions of Law

Robert L. Tsai — Sat, 25 Aug 2007 23:23:01 PDT

Around the time of the Bicentennial Celebration of the U.S. Constitution’s framing, Sanford Levinson called upon Americans to renew our “constitutional faith.” This Article answers the call by explicating the ways in which two landmark constitutional law decisions—Marbury v. Madison and Brown v. Board of Education—have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the Article argues that the legal symbols have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that Marbury, whose facts are unknown to the average American, has spawned an insulated message for legal insiders, while Brown, whose central holding is known by most citizens, acts as a unifying force in judicial thought. In fact, the opposite is true. Serving as a talisman of judicial might, Marbury evokes a popular myth of the reluctant lawgiver, as well as an entrenched juricentric belief in law. Despite its rehabilitation for ordinary Americans, in the minds of judges, Brown, now a generation removed from its date of decision, has come to refract lasting memories of social strife and the closing of the judicial mind. Ultimately, neither legal symbol, as it is understood today, offers a particularly uplifting ideal of justice or the judicial power. But what has grown grotesque can be shorn at the roots, and what has withered may yet be nursed back to vigor.

Reconsidering Gobitis: An Exercise in Presidential Leadership

Robert L. Tsai — Tue, 14 Aug 2007 20:29:01 PDT

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah’s Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of terror visited upon Jehovah’s Witnesses in the wake of Gobitis. Drawing upon previously unearthed archival material, this article for the first time attributes a major role to presidential initiative. A sophisticated strategy implemented by the Roosevelt administration systematically eroded the picture of political life constructed by Gobitis, presented an alternative reading of the First Amendment in urgent fashion, and rhetorically empowered advocates for the pro-rights position. Despite what many believed to be a deliberative moment, however, the Supreme Court incompletely memorialized the interaction between the branches of government. In copying the President’s words without attribution and purging the record of executive branch participation, the Barnette Court impoverished our appreciation of the constitutional system in action. Understanding the remarkable debate over the right of conscience within this paradigm sheds light on a variety of enduring questions, from the strategies utilized by presidents to control political pathways, to the origins of the First Amendment’s centrality to the modern order.