By Robert L. Tsai. New Haven & London: Yale University Press, 2008. 216pp. Cloth. $45.00/£25.00. ISBN: 9780300117233.

Reviewed by Ruthann Robson, City University of New York School of Law. Email: robson [at] mail.law.cuny.edu.


The forty-five words of the First Amendment have been subject to extensive exegesis, especially in the last one hundred years. Freedom of speech, freedom of the press, and freedom of religion are concepts that are posited as essential to the United States and to democracy. Yet judges, politicians, theorists, and most everyone else recognizes the relativity and elasticity of the principles expressed in the First Amendment.

An associate professor of law at American University, Washington College of Law, Robert Tsai observes that “evocative metaphors abound in First Amendment thought” (p.23). In ELOQUENCE AND REASON, he argues that constitutional metaphors are not basic-level metaphors integral to intelligibility. Instead, Tsai contends that First Amendment metaphors such as “bulwark of liberty” are “second-order metaphors” that “elaborate and psychologically legitimate a set of foundational ethics and frameworks for governance” (p.25). Tsai explains the principal aim of his book as being 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 ordinary Americans” (p.ix).

As a “prominent example” of his thesis, Tsai explicates Justice Scalia’s culture war metaphor, “unleashed first in ROMER v. EVANS and later recycled to great effect in LAWRENCE v. TEXAS” (p.26). ROMER (1996), and LAWRENCE (2003) both involved issues categorized as gay rights and neither invoked the First Amendment, except in the most oblique manner: ROMER was a constitutional challenge to Colorado’s Amendment Two to the state constitution which prohibited laws barring sexual orientation discrimination; LAWRENCE was a challenge to the Texas sodomy statute which criminalized “deviate sexual intercourse with another individual of the same sex.” Dissenting in both cases, in prose that has been described by a host of other commentators with adjectives such as scathing, Justice Scalia chastised the Court’s majority for rendering a decision that subverted the democratic processes. Tsai argues that critics who “would take Scalia to task for the bitterness of his prose often miss the deeper point,” which is that the terminology is “effective and eminently quotable precisely because it cuts to the quick” (p.27). As Tsai concludes, all “second-order metaphors make populist appeals; Scalia’s rendition of politics-as-war is simply more provocative than most” (p.27).

Later in the book, Tsai again discusses LAWRENCE v. TEXAS in a chapter entitled “War and Syntax,” connecting [*203] the case more directly with the First Amendment, noting that three of the four illustrations the majority opinion invokes to extend liberty beyond spatial bounds “can be traced to the First Amendment” (p.137). Tsai concludes that this rhetorical strategy “reflected a shrewd calculation,” because the language of expressive liberty fosters “broad social support” (p.137). Yet most of Tsai’s arguments are dedicated to discussing the vagaries of social support for expressive liberty.

For example, at the heart of the book is Chapter Three, “Linguistic Transformation,” in which Tsai explores two of the metaphors central to free speech, both generally attributable to Justice Oliver Wendell Holmes – the falsely shouting fire metaphor and the marketplace of ideas metaphor. After briefly discussing both metaphors, Tsai provides a synopsis of the central conclusions of the book: there is not necessarily any connection between the Constitutional text and the operative metaphors; this lack of connection has not “reduced” the “systematicity or durability” of the metaphors; and there is a “cumulative quality to the production” of the metaphors with a tendency to mix metaphors and deploy them to combat each other (pp.74-75).

Tsai also devotes attention to a central metaphor of the religion clauses, the wall metaphor of the separation between church and state. He discusses what he calls the “word-picture” created by the wall metaphor as stimulating “our senses on many levels” by fashioning conceptual dualities such as “peace:strife” and “strong:weak” (p.93). Tsai then discusses how the wall metaphor came to be “ridiculed” and “shunned” (p.107). He highlights President Regan’s 1983 speech to an evangelical convention stating that the founders “never intended to construct a wall of hostility” between church and state (p.101). Tsai contends that Regan’s formulation “would in short order become appropriated by the Supreme Court” (p.107). Reflecting on the transformation of the wall metaphor, Tsai draws four specific lessons. First, he argues that “the people themselves” proved receptive to complexity; a “bright-line approach can lose social support” when it fails to account for subtleties (p.107). Second, he concludes that “the linguistic regime is a participatory matrix,” in which no “single actor inside or outside the courts” is determinative (p.107). Third, he observes that “the features of any linguistic regime are interconnected” (p.107). Fourth and finally, just as there is “conceptual innovation,” there is resistance (p.108).

As Tsai demonstrates, the boundary between metaphor and doctrine is a permeable one. Tsai quotes Justice Reed in a relatively early Establishment Clause case, MCCOLLUM v. BOARD OF EDUCATION (1941), arguing against Jefferson’s “wall of separation between church and State” by stating that “a rule of law should not be drawn from a figure of speech” (333 U.S. at 247, Reed, J., dissenting) (p.95). Tsai, however, argues that “attractive prose can enhance the life-term of a doctrinal rule,” and likewise “an ungainly or controversial formulation can destabilize the most thoughtful arrangements of legal doctrine” (p.107).

Nevertheless, ELOQUENCE AND REASON would have benefited from [*204] more attention to specific metaphors and legal rules, as well as their inter-relationships. Metaphors may become “linguistic regimes” as Tsai theorizes (p.52), but they may also become clichés. An exploration of some of the lesser-known metaphorical constructions in the First Amendment would have enriched the book. Further, too often the text seems to hurry through the cases under discussion, skimming over the doctrinal and rhetorical nuances in favor of broad conclusions. The thesis is first articulated as an expansive one applicable to all constitutional language (p.ix), with an emphasis on First Amendment concepts, but the qualities that merited the special attention to the First Amendment are not adequately explicated. Moreover, for readers not familiar with the cases, it might seem as if all the cases under discussion, including ROMER and LAWRENCE (p.26), were decided on the basis of the First Amendment.

Additionally, I often longed for more detail and for more precision in the quotations and citations. For example, in the discussion of the fire metaphor, one reads: “Rejecting their First Amendment defense in SCHNECK v. UNITED STATES, Justice Holmes likened the defendants’ actions to ‘falsely shouting fire in a crowded theater’” (p.53). But despite the quotation marks encompassing the phrase “falsely shouting fire in a crowded theater,” this is not the language that appears in the official versions of Justice Holmes’ opinion in SCHNECK (1919). Rather, Holmes’ statement is “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” (247 U.S. at 52). The imprecision also occurs earlier in Tsai’s discussion (p.50), but it seems especially inexplicable given the sources in the footnote, including L.A. Powe’s excellent article “Searching for the False Shout of Fire,” from CONSTITUTIONAL COMMENTARY, and including Tsai’s own earlier law review article which reproduces the passage correctly (Tsai 2004, at 195). This may seem a triviality – and certainly a “panic” may connote a crowded venue – but in a text about language, a high degree of accuracy seems necessary.

My most serious misgiving about ELOQUENCE AND REASON, with its subtitle, CREATING A FIRST AMENDMENT CULTURE, is evinced by another quotation; this one is about totalitarianism attributed to Hannah Arendt (p.128). My apprehension is not connected to the accuracy or the substance of the statement, but to my realization that Arendt is the sole woman invoked in ELOQUENCE AND REASON, apart from a few mentions of Justice O’Connor and a handful of citations in the notes. The absence of women is noteworthy; it has been quite some time since I found myself hunting through a book of contemporary legal theory looking for any reference to any woman. Moreover, the lack of feminist theorizing on gendered speech and linguistics, as well as on specific aspects of the First Amendment including sexual speech and discriminatory speech, left me wondering whether women were to be included in “Creating a First Amendment Culture.” [*205]

Powe, L. A. 2002. “Searching for the False Shout of Fire,” 19 CONSTITUTIONAL COMMENTARY 345.

Tsai, Robert L. 2004. “Fire, Metaphor, and Constitutional Myth-Making.” 93 GEORGETOWN LAW JOURNAL 181.

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

MCCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1941).

ROMER v. EVANS, 517 U.S. 620 (1996).

SCHNECK v. UNITED STATES, 247 U.S. 47 (1919).

© Copyright 2009 by the author, Ruthann Robson.