Robert L. Tsai (American University – Washington College of Law) has posted Eloquence and Reason: Creating a First Amendment Culture (ELOQUENCE AND REASON: CREATING A FIRST AMENDMENT CULTURE, Yale Univ. Press, 2008) on SSRN. Here is the abstract:
This book presents a general theory to explain how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. "Eloquence and Reason" employs the First Amendment as a case study to illustrate that liberty is not an end state but a state of mind achieved through the formation of a common language and a set of organizing beliefs. The book proceeds to explicate the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are better understood as the results of broader linguistic transformations. The book concludes by positing a model of judicial review in which jurists are responsible for the management of prevailing political discourses, quite apart from any obligations they may have to substantive conceptions of the good. The Table of Contents and and Preface are available for download.