PORT TOWNSEND — Stop people on the street in this town of artists and free thinkers and ask what rights the First Amendment guarantees, and many will be able to name them all — freedom of speech, freedom of religion, freedom of the press, the right to peaceable assembly and the right of petition to redress grievances.
They may also tell you what current laws violate those rights.
But when the Bill of Rights was ratified, what people perceived as the scope of those five guarantees was vastly different.
Those differences are the subject of popular constitutionalism, one of Port Townsend High School graduate Robert Tsai’s passions.
But the 37-year-old — who now lives in Washington, D.C., where he teaches at American University’s Washington School of Law — is not a political radical, nor is he up in arms about what the First Amendment should or should not cover.
What interests Tsai is how the language of the First Amendment has been deployed by both the right and the left to extend its protection in new directions.
New language
“I’m very interested in how individuals outside the courts shape the law,” he said in a phone interview from his home. “When people turn to the Constitution, they form a new language along the way.
The author of several articles on constitutional law, Tsai has written his first book, Eloquence and Reason: Creating a First Amendment Culture.
Published by Yale University Press, the book is an analysis of the First Amendment that goes beyond what the statements meant when they were written, and what the courts subsequently ruled them to mean, to encompass a third dimension — public discourse.
“I’m suggesting that what the Constitution means is really an amalgamation of political ideas and particular ways of talking about those ideas,” Tsai said.
While the book is written for an educated audience, discussion of constitutional concepts is not limited to lawyers and courts but permeates everyday language, he said.
For example, everyone is familiar with the term “separate but equal,” which defined an era. First Amendment concepts evolve as people apply them to bring about social change, Tsai said.
“Today, we think the idea of equal protection under the law incorporates racial justice, but there were strong cultural limits to that as late as the mid-20th century,” Tsai said.
“At the time, 50 percent of the population disagreed with Brown versus the Board of Education,” the 1954 United States Supreme Court decision — Oliver L. Brown et. al. v. the Board of Education of Topeka (Kan.) et.al. — which dismantled the legal basis for racial segregation in schools and other public facilities.
On the other end of the political spectrum, Reagan and the religious right took on the “wall of separation” metaphor that defined the relationship between church and state and scaled it down, Tsai said.
“Judges used to talk about reinforcing the wall and making it high and impregnable,” he said. “The way judges talk about the wall changed in the 1980s and ’90s.”
In the book, Tsai also discusses how he sees that presidents commandeered First Amendment language to promote their agendas.
For example, Franklin Delano Roosevelet talked about economic security and the New Deal in a way that was compatible to existing notions of individual rights, Tsai said.
Under Ronald Reagan, he added, there was a strong push to change the role of religion in the public sphere and effect such issues as abortion.
Tsai said he thinks President-elect Barack Obama is very aware of, and plans to wield, the power of a “rhetorical presidency.”
“He has a vision of using the Oval Office as a bully pulpit to effect lasting change in the way people talk about politics,” Tsai said.
“If he succeeds in doing what he wants, it will push the courts to talk about the law in a different way.”
Tsai, who is married with two children, is working on his next book, a comparison of forgotten American constitutions and manifestos, of which many exist.
But when he was growing up in Port Townsend, his first ambition was to work on the graphic side of publishing.
Budding cartoonist
“One of the first things I considered being was a cartoonist,” he said.
“I started out drawing cartoons used in ads in my parents’ restaurant, Tso’s Chopsticks.”
That was the second restaurant the family opened.
The oldest of three children, Robert was not yet in school when his parents, Shirley and Joseph Tso, moved to Port Townsend and bought The Lighthouse Cafe on Water Street.
They operated it for more than for 20 years, Tsai said, and also ran a second restaurant that lasted five or six years.
Tsai drew cartoons for the Port Townsend High School newspaper, but other talents presaged a legal and literary career: winning the spelling bee in fifth and sixth grades, being elected junior class president and student body president, serving as a lawyer on the high school’s first mock trial team and going to Boys’ State.
He also spent hours at the public library and picking through books in the local bookstores, including one owned by Frank and Edna Smith.
“Mr. Smith used to run a bookstore in an old building on the water side, where April Fool’s is located,” Tsai said.
“I spent many days there, and he encouraged my reading habits and can be thanked or blamed for my overactive imagination.”
His English teacher, Martha Mead, awakened a love for literature, Tsai said, and Robbie Roberts, who taught Contemporary World Problems, renewed a desire to be engaged in social and political issues.
New First Amendment conflicts that continue to make headlines usually pit an individual’s right to freedom of expression against religious practice, he said, for example, in the case of gay Boy Scouts. But just citing the First Amendment isn’t the answer.
“In a complex democracy, you can’t overvalue a single principle,” Tsai said.
“One person’s claim to First Amendment rights will run up against someone else’s rights or other democratic values.
“We are seeing a lot of this in the public workplace, where cases go both ways: the employee has the right of expression, of free speech. On the other side, the capacity to express yourself can’t interfere with the job.”
Tsai is scheduled to make speaking engagements in connection with the book in New York, Washington, D.C., Boston, Atlanta and Denver.
Although he doesn’t have any scheduled in his home state yet, he will be in Eugene, Ore., where he started his teaching career at the University of Oregon, next spring.
For more information, go to www.roberttsai.com or yalebooks.com.
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Port Townsend/Jefferson County reporter/columnist Jennifer Jackson can be reached at jjackson@olypen.com.
