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Abstract:
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 argues 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. 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.

Supreme court, cognitive theory, cognitive linguistics, first amendment, constitutional law, metaphor, culture, language, linguistics, rhetoric, institutionalism, anthropology, internet, speech, expression, judicial power, courts, myth, folklore, script, performance

Abstract:
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.

constitution, religion, first amendment, jehovah's witness, conscience, president, executive branch, supreme court, war, gobitis, barnette

Abstract:
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 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 borrowing, and identifies some of the risks involved. 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 attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking.

constitution, borrowing, First Amendment, Equal Protection, culture, minimalism, living constitutionalism, originalism, liberty, equality

Abstract:
Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - 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 decisions 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 jurists as a talisman of judicial might, Marbury evokes a popular legal-cultural myth of the reluctant lawgiver, as well as an entrenched juricentric belief in law. Despite its rehabilitation for ordinary Americans, in the minds of jurists, Brown, now a generation removed from its date of decision, has come to signify social strife and the closing of the judicial mind. Ultimately, neither symbol, as it is understood today, offers a particularly inspiring ideal of justice or the judicial power. But what has grown grotesque can be shorn at its roots, and what has withered may yet be nursed back to vigor.

religion, semiotics, symbol, culture, anthropology, interpretation, interpretive, iconography, constitution, ritual theory, realism, communitas, performance, performative, theater, humanities, judicial appointment, institutionalism, myth, parable, civil rights, marbury, madison, brown, education

Abstract:
The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation and informal deployment of images, metaphors, scripts and frames of understanding. Third, I examine the frame of institutional conflict, an especially powerful rhetorical strategy that appears not only in federalism cases, but also in speech cases. Finally, I examine the psychological dimension of this language device, the underlying script that is played out when the frame is invoked in our minds, and the relationship between the metaphor of conflict and enduring cognitive ideals.

Constitutional law, language, linguistics, culture, new institutionalism, first amendment, cultural anthropology, rhetoric, free speech, jurisprudence, supreme court, metaphor, cognitive theory, cognitive linguistics

Abstract:
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.

constitution, radical, popular constitutionalism, slavery, equality, terrorism, citizenship, culture

Abstract:
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, I draw 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, I present 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.

constitution, democracy, jurisprudence, theory, civil rights, metaphor, language, sexual orientation, rhetoric

Abstract:
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 political 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.

citizen, war, fdr, roosevelt, popular constitutionalism, langston hughes, poetry, ethics, melancholy, democracy, politics

Abstract:
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.

First Amendment, constitution, culture, language, rhetoric, civil rights, president, social movement, linguistic, metaphor, religion, speech, assembly

Abstract:
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.

Abstract:
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.

court access, first amendment, constitutional litigation, public law, constitutional law, due process, litigation, civil rights, prisoner's right, prison litigation, attorney fees, right to petition, redress

Abstract:
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.

welfare, public policy, democracy, politics, elites, public opinion, law, rights, judicial review