Sovereignty as Discourse. Book Review Of: The Language of Liberal Constitutionalism. by Howard Schweber

Book review: The Language of Liberal Constitutionalism. By Howard Schweber. Cambridge University Press. 2007. Pp. 386. Reviewed by: Robert L. Tsa

Considerations of History and Purpose in Constitutional Borrowing

This essay is part of a symposium issue dedicated to Constitutional Rights: Intersections, Synergies, and Conflicts at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can\u27t resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly originalist fashion. When we do so, we learn that armed expression and white supremacy has been linked in the past in dangerous ways that must be accounted for today. Third, in deciding how to juggle a variety of constitutional interests, we must engage in purposivist interpretation, considering not only the goal of particular constitutional provisions, but also how the general enterprise of constitutionalism is affected by interpretive choices. In a time of democratic decline, which we are experiencing today, the borrowing of constitutional ideas and delineation of rights must be done in a way that treats the renewal of democracy as an overriding purpose. Otherwise, judicial decisions will be incapable of aiding perennially mistreated groups or solving intractable problems. Remaining non-judgmental as to warring conceptions of democratic life merely ratifies unequal patterns of power and influence. Fourth, as an alternative to policing rights harmony, I argue that it is a judge\u27s responsibility to help foster an unruly constitutional culture where overlapping rights and values are ubiquitous rather than to be obsessed with maintaining a mythical notion of balance. To do so, judges should pursue these twin goals: (1) ensuring the durability of connections between key constitutional values and (2) permitting one closely related value to be substituted for another when doing so is consistent with our constitutional past and can aid the project of democratic renewal

Democracy\u27s Handmaid

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, Tsai draws 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, he presents 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

Constitutional Borrowing

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. The authors\u27 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. They finish by discussing how attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking

Constitutional Borrowing

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. The authors\u27 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. They finish by discussing how attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking

Langston Hughes: The Ethics of Melancholy Citizenship

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

Langston Hughes: The Ethics of Melancholy Citizenship

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