Eloquence and Reason: Creating a First Amendment Culture

213 Pages·2008·0.83 MB·English

by  Robert L. Tsai

Eloquence and Reason
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R O B E R T L . T S A I
Eloquence and Reason
CREATING A FIRST AMENDMENT
CULTURE
Yale University Press
New Haven &
London
Published with assistance from the Kingsley Trust Association Publication Fund
established by the Scroll and Key Society of Yale College.
Copyright ∫ 2008 by Robert L. Tsai.
All rights reserved.
This book may not be reproduced, in whole or in part, including illustrations, in
any form (beyond that copying permitted by Sections 107 and 108 of the U.S.
Copyright Law and except by reviewers for the public press), without written
permission from the publishers.
Set in Sabon type by Keystone Typesetting, Inc.
Printed in the United States of America.
Library of Congress Cataloging-in-Publication Data
Tsai, Robert L., 1971–
Eloquence and reason : creating a First Amendment culture / Robert L. Tsai.
p. cm.
Includes bibliographical references and index.
isbn 978-0-300-11723-3 (cloth : alk. paper)
1. United States. Constitution. 1st Amendment. 2. Freedom of speech—United
States. I. Title.
kf4770.t73 2008
342.7308%53—dc22
2008010981
A catalogue record for this book is available from the British Library.
This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of
Paper).
It contains 30 percent postconsumer waste (PCW) and is certified by the Forest
Stewardship Council (FSC).
10 9 8 7 6 5 4 3 2 1
For if the worthiness of eloquence may move us, what
worthier thing can there be than with a word to win cities
and whole countries.
—Sir Thomas Wilson, 1553
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Contents
Preface ix
Acknowledgments xiii
1 Freedom as a Matter of Faith 1
2 Metaphor and Community 23
3 Linguistic Transformation 49
4 Political Pathways 78
5 War and Syntax 112
6 Adjudication as Facilitation 140
Coda 163
Notes 167
Index 193
vii
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Preface
Many people believe in the promise of the First Amendment before they
set eyes on the actual text. Even if they do not know the precise wording of the
instrument, they consider the cluster of rights guaranteed by it to be a badge of
citizenship. As more Americans came to accept the virtues of expressive liberty
during the twentieth century, the First Amendment became synonymous with
social progress. Faith in the redemptive power of freedom of expression, in
turn, enabled judges to apply constitutional text to encompass a breathtaking
range of human functions: thought, emotion, utterance, spirituality, associa-
tion, deliberation, defiance.
The principal aim of Eloquence and Reason is to 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 ordi-
nary Americans. This book employs the First Amendment as a case study to
illustrate that liberty is not an end state but a state of mind achieved through
the formation of a common language and a set of organizing beliefs. Inter-
rogating the structure of the First Amendment as a governing discourse reveals
more than the contours of a political belief system. It also uncovers the social
and institutional processes through which foundational ideas are generated.
Chapter 1 begins by challenging reigning theories of political community.
Such accounts locate the origin of governing ideals in a single (usually, imag-
ix