The First Amendment: Democracy and Romance by Steven H. Shiffrin (review)

BookReviews 211 BookReviews StevenH. Shiffrin. The FirstAmendment: Democracy and Romance. Cambridge, MA andLondon, England: Harvard University Press, 1990. Pp. viii + 285. So much iswritten on the complicated and highly charged subject of the First Amendment to the American Constitution, that it is rare that one work stands out tothe extent that it warrants a review in a nonlegal medium such as the Canadian Review ofAmerican Studies.That the editors considered Steven H. Shiffrin's TheFirst Amendment: Democracy and Romance would be of interest to their readers is likely due not so much to the importance of the subject or the novelty of the author's position,as to the publisher's promise that the work ''will interest a general audience aswell as lawyers, journalists, and scholars in a variety of academic fields." Would thatthis were so: despite the intriguing title and two ambitious theses, Shiffrin's socalledinterdisciplinary approach amounts to little more than a point of departure for a fairlyrestricted legal treatment. Nevertheless, this is far from a standard garden-variety jurisprudential treatise. Most notably by relegating most of his technical case analysis to the footnotes (which consequently are practically a book in themselves), Shiffrin has made a genuine effort to accommodate the nonspecialist. This it would seem is a consciouschoice, fundamental to his purpose. For this is a work at least as hortatory asitis analytical or expository. Shiffrin is eager to reach the educated layperson, to propagate a "story not widely told" (162)-the particular brand of democratic romanticism he identifies with American cultural icons Walt Whitman and Ralph Waldo Emerson. With an ingenuousness not often exhibited by law professors, the author first arguesthat First Amendment law not only defies the structure and rules that other commentators have not so much discovered as imposed, but that it cannot be reduced to any such analysis at all. His learned but far from pedantic criticism of the attempts of other scholars to find patterns and suggest guiding doctrines is arguably thebook's greatest strength. First Amendment case law, Shiffrin submits, is and can be no more than social engineering, a "committee product" (3). However, contrary to the received wisdom, this is an opportunity to be celebrated, not a weakness to be decried: "Social engineering may function best when doctrine is ad hoc" (3). Whilehe acknowledges this attitude allows that legal spectre, uncertainty, to raise 212 Canadian Review of Amencan Studies its fearsome head, he has an academic's contempt for this problem: "There are some things worse than uncertainty'' (16). This is not to say that First Amendment law is, or should be, directionless or entirely subjective. Indeed, Shiffrin contends that the ad hoc process advances "First Amendment values" more than mere rules could. Thus, somewhat awkwardly, the book's apparently contradictory theses are combined. The First Amendment, the author states, "can do double duty'' by providing "a sensible accommodation among a host of conflicting values in a changing reality" as well as providing a "shining symbol" which does not merely tolerate but also encourages freedom of speech (6). While there can be no organizing principle per se, romance (in the literary sense) serves as an "organizing symbol" (3): "The romantic perspective assists in clarifying the nature of the First Amendment values at stake" (150), especially when the ostensible conflict is over something as mundane as tobacco advertisement. Even without authoritative rules and precedents, judges should be guided by the purpose of the First Amendment, which the author believes is "to protect the romantics" (3), being "those who [seek] to emphasize the passions against abstract reason; the subjective against the objective; the concrete and the particular against the general and the universal; activity, dynamism and movement" and, most significantly, ·'the celebration of all forms of defiance ... against the given" (141). This image of the romantic dissenter, as exemplified and extrapolated by Whitman and Emerson, he finds to be central to a principled, complex democracy. According to the author, "Emerson and Whitman understood more about the relationship of freedom of speech to American democracy than did Oliver Wendell Holmes or Alexander Meiklejohn, ... their insights are closer to prevailing conceptions of American democracy than those currently prevailing in the legal commentary and if...