Robert L. Tsai
American University - Washington College of Law
Boston University Law Review, Vol. 86, No. 1, 2006
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.
Number of Pages in PDF File: 64
Keywords: constitution, democracy, jurisprudence, theory, civil rights, metaphor, language, sexual orientation, rhetoric
JEL Classification: K10, K40, K41
Date posted: December 13, 2005 ; Last revised: May 6, 2008