The Language of Liberal Constitutionalism.

• Author: Tsai, Robert L.
• Position: Book review

THE LANGUAGE OF LIBERAL CONSTITUTIONALISM. By Howard Schweber. (1) Cambridge University Press. 2007. Pp. 386. Hardback. $90.00.

Studies of language and its relationship to democratic constitutionalism have yielded a number of insights, but major contributions have been harder to come by. This may be partially explained by the multiplicity of disciplines from which a theorist might draw to investigate this nexus. It might also be attributed to the varying degrees of seriousness with which synthetic treatments have been undertaken. There certainly is no shortage of possibilities for language to play within a theory of constitutionalism. Words can serve purely an instrumental function in the resolution of issues or the broader elaboration of democratic "principles," "intentions," "expectations," or "values"; they may be constitutive of legal ideas or broader affinities; or they might shape, delimit, or organize the range of political and legal possibilities open to certain institutions or society as a whole.

On to this landscape appears Howard Schweber's learned and ambitious book, The Language of Liberal Constitutionalism. Professor Schweber, who teaches political theory and law at the University of Wisconsin, takes seriously the proposition that the relationship between language and constitutionalism must be both carefully investigated and normatively justified. Arguing from within liberal theory, he boldly argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and the sufficient condition for constitution making" (p. 7).

If Schweber's work is measured against this criteria--the disciplines upon which he draws, the seriousness with which he undertakes the project of synthesis, and the role that language plays in the process of constitutional lawmaking--it is possible to evaluate the strengths of his treatment as well as the basic project of theorizing a place for language in democratic constitutionalism.

I

Lately, law-as-language scholarship has fallen into one of two broad genres. First, one might turn to linguistics, rhetoric, or psychology to shed light on particular social ills or the dynamics of judicial reasoning. We might call this an instance of applied language studies. Such works are too numerous to count, but the best of such work include treatments by Lawrence Solan and Steven Winter. (3) Second, drawing upon the rhetorical tradition, one might theorize more broadly the ways in which language provides a means for collective self-governance. In this oeuvre, we encounter the work of contemporary authors such as Paul Kahn, Martha Nussbaum, Jefferson Powell, and James Boyd White. (4)

The Language of Liberal Constitutionalisrn falls squarely within the second genre. It is a work of high theory, crafted with an eye toward provoking a reconsideration of the nature of constitutionalism, liberalism, and judicial review. If Schweber elaborates a central thesis, it is that "sovereignty is not authority over language; it is rather authority exercised as a language" (p. 133). In making this initial characterization of the relationship between language and politics, Schweber powerfully restates the terms of the debate. The strongest claim about law is that it is not merely a tool for articulating a preexisting political will, but rather that the two are, in some elemental manner, indistinguishable. Far from occupying a subordinate status, the true role of language is to constitute the political will, giving it recognizable form and rendering it a matter of everyday practice. Sovereignty exists only to the extent it can be given linguistic meaning.

Here Schweber is at his best, revisiting the writings of Locke, Bodin, and Hobbes in order to show how liberal theorists subordinated language to the popular will without sufficiently interrogating the interrelationship of the two. He convincingly establishes how a pre-existing language must exist for an initial act of political creation to have meaning, as well as for subsequent exercises of political will to be comprehensible. The writing is crisp, insightful, and exhilarating as the book weaves in and out of major works in the liberal canon. Few who work in this vein have bothered to engage such texts (White is one of the few who come to mind)--and Schweber goes deeper than most. A relationship between self-government and language has been presumed more than it has actually been theorized, which makes a return to canonical texts in the field of politics with this question in mind so timely. It is a question that is made all the more pressing in light of the broader turn toward the humanities and social sciences to illuminate the Constitution, which has all too often ignored normative questions in the quest for a sound descriptive theory. In the search for a coherent account of constitutional language, Schweber reminds us that what the proper role language should play must be answered by reference to a community's authoritative traditions. (5)

Schweber separates himself from others working in this vein by claiming that a common language is sufficient to comprise a people's constitutional project and by generalizing the nature of liberalism across populations, experiences, and cultures. What are we to make of Schweber's rather strong claim that a people's consent to use a common language comprises not only the beginning but also the core of the liberal project? Many would admit that the existence of a shared language is a necessary precondition for constitutionalism, but is it sufficient? The claim that a common, artificial mode of discourse is enough to legitimate a legal regime should strike readers as novel as it is provocative. Insofar as it is possible for a people to agree to anything at all over a period of time, a particular way of talking politics might be the most we can expect.

Whether imagined as revealed in the moment of constitution writing as a commitment to a particular language (Schweber's approach) or in how Americans have actually employed that language over time, (6) the consent approach seems strongest here precisely because it is possible to imagine agreement as to rhetorical form while recognizing profound disagreement over substantive principles, end-goals, and worldviews. An individual might decide to take his chances and participate in such a political order. With life circumstances hypothetically veiled or even with full knowledge of actual privileges and disabilities, broad consent is possible because the system formally ensures no permanent winners and losers, and secures everyone's capacity to dissent. A shared language is sufficient...