It has become fashionable again to wonder about the appropriateness of certain influences on legal and constitutional meaning. Spurred in part by discussions between Justices Antonin Scalia and Stephen Breyer over the relative importance of understanding foreign law for American constitutional interpretation, jurists are back to debating what influences should or should not shape legal outcomes. Should judges look to religious or moral teachings when resolving legal disputes? Should they tap into their own personal predilections? Where should we draw the line on possible influences so as to maximize the impartiality of America's legal and judicial actors?

Slightly less frequent (though perhaps more interesting) are debates about the reverse, about how the major institutions of the American government—and, in particular, courts—shape the way the public internalizes constitutional and legal meaning. Comparatively rare is the discussion about the impact that judicial decisions have on public discourse. Yet that is precisely what Robert Tsai explores in this provocative and elegant book that is both critical of the Court's role in the framework of government and simultaneously hopeful that the body politic can recognize and overcome the failures of our judicial institutions.

In the author's own words, “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 ordinary Americans” (p. ix). That is, Tsai wants to present a normative explanation for the ways that political bodies like courts and presidents absorb and subsequently manipulate constitutional meaning through the various freedoms safeguarded by the First Amendment. He is mostly successful. The argument is fresh, the writing is sophisticated, and the theory presented is subtle in its complexity.

Tsai begins by asking us to view legal and constitutional meaning as a matter of faith, begun by a single text but shaped mightily by the community and generations that have followed the original drafting and ratification. The community, he insists, shapes meaning, but even then the meaning is limited by the “precepts of eloquence—the customs governing acceptable forms and procedures for engaging in public debate” (p. x). His approach is thus multidimensional: It is theoretical in that he wants us to comprehend a new set of rules for First Amendment jurisprudence. It is developmental in that he wants us to see the temporal progression of First Amendment jurisprudence. It is also, and perhaps most profoundly, procedural; he wants us to know how it is that a community establishes and maintains faith in an idea.

In Chapter 2, on “Metaphor and Community,” Tsai criticizes the widespread view that metaphor is a lesser form of argumentation. In his estimation, second-order metaphor like that used by judges (think Robert Jackson's “fixed star in our constitutional constellation” or Oliver Wendell Holmes's “shouting fire in a crowded theater”) can have an important stabilizing and binding effect on a community. Metaphors allow ordinary citizens to find important meaning in the law. Metaphor in the law is thus part of the democratic experiment. It connects the elites and the citizenry in ways that promote genuine understanding. Rather than criticizing its use, Tsai suggests that metaphor is a necessary part of the attempt to create First Amendment culture.

In Chapter 3, the author introduces the concept of “linguistic transformation,” which he defines as a “genus of constitutional revolution” (p. 52). Using the narratives and the metaphors of fire and markets, he shows that certain processes involving free speech jurisprudence can change, sustain, and produce constitutional meaning. This discussion then gives way to Chapter 4 in which Tsai explains how other areas of First Amendment jurisprudence contribute to linguistic transformation throughout American society. Drawing on case studies, such as the Civil Rights movement and the debate surrounding the wall of separation between church and state, he recounts the development of language and the way that metaphors offered by jurists seep into the cultural milieu. He does an admirable job of discussing the interplay among courts, political institutions, and the public on the changing understanding of discourse surrounding First Amendment ideas. Sometimes, he writes, the interplay is fraught with tension and disagreement.

Chapter 5 explores the power of the president to influence linguistic development. Providing concrete examples (including the flag salute controversy that embroiled Franklin D. Roosevelt and the moral conservatism that animated Ronald Reagan's terms in office), Tsai examines the interaction between presidents and courts, institutions and the public, and, most importantly, language and text. The author tells the story of the Court's role in Minersville School District v. Gobitis and FDR's eventual “intervention” in that controversy. He tries to weave a narrative that describes the lengths to which the president was willing to go in order to modify constitutional meaning on this topic.

The final chapter (there is a short coda at the end of the book) is probably the most interesting. “Adjudication and Facilitation” details how jurists should not be governed by a “translation” model of constitutional adjudication (one based on the simple need to interpret the text), but rather on a “facilitative” model whereby judges are supposed to manage, encourage, modify, and contribute to public discourse. He writes that “the courts' duty to say what the law is encompasses more than the power to articulate the meaning of text; it extends to the authority to initiate, suppress, and coordinate prevailing rhetorical trends” (p. 145). The chapter is both prescriptive and interesting. Furthermore, it is the most compelling in the book because of Tsai's ability to use the translation model itself to propose a more subtle approach for jurists. He spends almost the entire chapter interpreting Founding documents (mostly Federalist and Anti-Federalist writings) to prove his point. In so doing, he succeeds in contributing to public discourse.

The book is refreshing in its novelty. There are, of course, hundreds of books on the First Amendment, but none is identically focused on the ways in which courts and the public react to each other's impulses. Tsai successfully portrays the judiciary (as well as other institutions of government) as a body that massages constitutional and legal meaning in ways that impact a community's comprehension of itself and the law. He is at his best when he engages in sophisticated theorizing about the significance of legal metaphor, the competing models of constitutional adjudication, and the possibilities for civic engagement or renewal.

Ironically, Tsai is less skillful at the use of narrative tools to tell important stories about the interaction between institutions and the public. His ability to describe the stories that animate court cases and presidential actions—the meat on the bone of First Amendment jurisprudence and an essential part of promoting the value of higher rhetoric—is lacking. His case studies are evident, but much of the foundation or background that would enable readers to fully comprehend his theoretical conclusions is obscure. As such, the book is probably best suited for the legal academy and faculty and for graduate students in political science precisely because the author assumes that readers bring a fairly sophisticated understanding of the constitutional landscape to the manuscript. For that particular audience, however, Eloquence and Reason certainly belongs on the library shelf.