November 24, 2004
INTERVIEW: Constitutional law professor Robert Tsai on Metaphor and Myth, Taiwan and Port Townsend, Learning and the Law
In this interview with Oregon Lawyer, Tsai talks about metaphor and myth, Taiwan and Port Townsend, learning and the law.
OL: Where did you grow up, and how early did you know legal scholarship was your calling?
RT: I immigrated to the United States with my family from Taiwan. We bopped around a bit in the Bahamas and Vancouver, B.C., before gaining entry through the Port of Seattle, eventually settling in the Victorian seaside town of Port Townsend, Washington.
My parents ran a cafe together for over 20 years. I am the first person on my mother’s side to attend college, must less pursue graduate studies. My father was a refugee from mainland China who worked himself out of poverty, attended university in Taiwan, and became a judge. He gave that up so we could have a shot at a brighter life in America. Indeed, he traded his black robe for a white apron. My father knew nothing about cooking- – he had to learn his new trade in a Seattle hotel restaurant. And, before the rest of us had gained entry to the U.S., he would visit my mother, sister, and me in Vancouver when he could get away.
I didn’t really have a single transformative moment when the light bulb came on and law became the only possibility for me. The only thing I was reasonably sure of was that I wanted to become an educator and scholar — even early on, I wished to teach, to write, and to be read.
Toward the end of my time at university I wavered between pursuing a Ph.D. in history and a J.D. Once I was accepted by Yale’s law program, it became an easy choice since I was aware of the school’s reputation as a kind of graduate school of law and a training ground for professors. We’re very lucky that as law teachers we are able to enter the academy “on the cheap,” so to speak, often with a J.D. and a few years of practice.
OL: You presented your paper one of only two in constitutional theory at the high-profile Stanford-Yale Young Faculty Forum. And you’re one of the few scholars from a public school and the only one from a Northwest law school this year. Tell us about the forum.
RT: The forum is intended to identify promising young scholars in various fields, bring us together, and show us a thing or two about scholarship at the highest levels. I’m told that this year there were over 150 papers submitted overall from tenure track law faculty around the country —the most in the competition’s history.
OL: Your paper has a fascinating title: Fire, Metaphor and Constitutional Myth-Making. What is the connection between fire and the Constitution?
RT: In my paper, I call the symbolic processes of law constitutional myth-making. By that I mean the social process that generates potent legal myths, metaphors, mantras and story lines.
Legal doctrines, categories and rules make up the formal features of lawmaking – but I argue that the symbolic processes play an instrumental role in the creation of law as well. The symbolic forms of law can either reinforce or unsettle existing legal doctrine.
To illustrate my thesis, I trace fire-based language in the First Amendment area over time. At the turn of the twentieth century, when the First Amendment was more aspiration than reality, fire-inspired metaphors facilitated government suppression of speech; take the familiar example of Justice Oliver Wendell Holmes and a man falsely shouting fire in a crowded theater.”
American institutions had no use for more poetic pro-speech sayings such as “eloquence may set fire to reason” – also by Holmes.
But in the post-war era, the anti-totalitarianism agenda and extended period of economic prosperity facilitated the reconfiguration of the myth of fire. Increasingly, we see fire and speech woven together to promote expanded First Amendment liberties.
Whereas in the early era, speech is metaphorically described as “sparks” threatening a wider conflagration, in our own time speech regulation is more likely to be characterized as a “torch” endangering our constitutional order. The part of the mythical firefighter, once played by the government, is today more often played by the Court.
OL: You say your findings have good news and bad news for citizens and our political system. What do you mean?
RT: As always, these developments offer good news and bad news.
The good news is that the results in legal rulings today are often protective of speech, and metaphors and legal mantras generally are useful to help ordinary people understand the intricacies of law.
The bad news is that today’s fire-based legal discourse reflects a dangerously court-centered understanding of our constitutional order – what I call a juriscentric view of law.
OL: Juricentric- what do you mean by that?
RT: Not only are courts not the best placed to safeguard our rights, but the hope that “the courts will save us” lets public officials off the hook and could very well foster a climate in which more rights are abridged.
I would say that my experience practicing law in the public interest confirmed two hypotheses I held coming out of law school, and these lessons inform my scholarship. The primary point is that courts can only do so much to ensure liberty and equality. I do not wish to be misunderstood as saying that courts should stay on the sidelines, for there is much that can and should be done within the judicial system.
There are many well-intentioned people who think that the courts are the ultimate bulwark of our freedoms, that we should simply trust judges to solve our problems. I am not one of them. Rather, I believe that institutional cooperation, legal culture, and social mobilization play far greater roles in ensuring liberty and equality than anything that courts have ever done.
The second hypothesis confirmed during my time in law practice is that legal change (like death and taxes) is the only thing we can bet on – law is always on the verge of retrogression or progress. Stability in law is a moment in time and a frame of mind, not a permanent state of affairs.
OL: What will you be working on next?
RT: I am working on a book that explores the construction and perpetuation of free speech culture in the United States. At the core of the book are the ideas I presented in Fire, Metaphor and Constitutional Myth-Making.
<> A more accessible version called Revolutionary Sparks was published this fall in Legal Affairs magazine.
Two other articles related to the book project are now on the front burner. I presented Constitutional Iconography in Chicago at the Law and Society Association’s Annual Meeting, which was organized around the 50th anniversary of Brown v. Board of Education. Through the years, many have observed the similarities between law and religion. Few, however, have explored the multiple ways in which specific symbols are deployed by jurists and litigants to create and sustain belief in the rule of law. The paper will be published in the Iowa Law Review as “Sacred Visions of Law.”
The second paper focuses on the importance of war imagery to First Amendment thought. One might think that notions of war have consistently had a speech-restrictive impact, but that’s not so. We have just as many pro-speech war images as we have pro-regulation ones. I am very excited about this project, I think it is a timely one, and I will soon have much more to say about it.
OL: The scholarly life clearly suits you but for those of us who are prosecutors, public defenders, journalists, judges and investigators what’s it like?
RT: Well, for me – writing scholarship is like struggling with a catchy tune that pops in your head one day. Day after day, you whistle it to yourself, walking down the hall, and when it’s worked out, you share it with friends and colleagues, who are hopefully delighted by your cleverness.
If you are lucky, others may hum the tune a bit — even those who hate music— and ask you whether it goes this way or that, and even to riff off your jingle.
Someday, you might write a great magnum opus that others demand to be performed. Critics love it or hate it, but must confront it. And before you die – if you are lucky – your little tune has become a cacophonous medley of overlapping wind instruments, strings, and percussion, enriched by the occasional guest performances of colleagues.
E.S. published November 2004. Robert Tsai was interviewed in June.