: Code 2.0

Problems with Courts

Problems with Courts

There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential about the constitutional or legal culture in which it is enacted to protect that cultural attribute against changes in the future. A transformative constitution (or amendment) does the opposite: It tries to change something essential in the constitutional or legal culture in which it is enacted to make life different in the future, to remake some part of the culture. The symbol of the codifying regime is Ulysses tied to the mast; the symbol of the transformative is revolutionary France.

Our Constitution has both regimes within it. The Constitution of 1789 before the first ten amendments was a transformative constitution. It called into life a new form of government and gave birth to a nation.[1] The Constitution of 1791 the Bill of Rights was a codifying constitution. Against the background of the new constitution, it sought to entrench certain values against future change.[2] The Civil War amendments were transformative again. They aimed to remake part of what the American social and legal culture had become to rip out from the American soul a tradition of inequality and replace it with a tradition and practice of equality.[3]

Of these two regimes, the transformative is clearly the more difficult to realize. A codifying regime at least has inertia on its side; a transformative regime must fight. The codifying regime has a moment of self-affirmation; the transformative regime is haunted with self-doubt and vulnerable to being underminedby targeted opposition. Constitutional moments die, and when they do, the institutions charged with enforcing their commands, such as courts, face increasing political resistance. Flashes of enlightenment notwithstanding, the people retain or go back to their old ways, and courts find it hard to resist.

Our own constitutional history reveals just this pattern. The extraordinary moment after the Civil War when three amendments committed to civil equality were carved into our Constitutions soul had passed by 1875. The nation gave up the struggle for equality and turned to the excitement of the Industrial Revolution. Laws enforcing segregation were upheld[4]; the right of African Americans to vote was denied[5]; laws enforcing what was later seen to be a new kind of slavery were allowed.[6] Only after one hundred years of continued inequality did the Supreme Court again take up the cause of the Civil War amendments. It would not be until Brown v. Board of Education, in 1954, that the Court again recognized the transformative idea of the Civil War amendments.[7]

One could criticize the Court for this century of weakness. I think it is more important to understand its source. Courts operate within a political context. They are the weakest branch of resistance within that political context. For a time, they may be able to insist on a principle greater than the moment, but that time will pass. If the world does not recognize the wrongness of its racist ways, even a strong statement of principle enacted within our Constitutions text permits a court only so much freedom to resist. Courts are subject to the constraints of what everyone with a voice and the resources to make it heard believes is right, even if what everyone believes is inconsistent with basic constitutional texts.

Life is easier with a codifying constitution, because there is a tradition that the text is just meant to entrench. If this tradition is long-standing, then there is hope that it will remain solid as well.

But even a codifying constitution faces difficulties. Codification notwithstanding, if the passions of a nation become strong enough, there is often little that courts are willing to do. The clarity of the First Amendments protection of freedom of speech notwithstanding, when the speech was that of communists and anarchists, the government was allowed the power to punish.[8] The presumption of innocence and equality notwithstanding, when Japan bombed Pearl Harbor, the government was allowed to shuttle every West Coast American of Japanese descent into concentration camps.[9]

These are the realities of courts in a democratic system. We lawyers like to romanticize the courts, to imagine them as above influence. But they have never been so, completely or forever. They are subject to a political constraint that matters. They are an institution within a democracy, and no institution within a democracy can be the enemy of the people for long.

It is against this background that we should think about the problems raised in Part s 3 and 4. In each case, my argument was that we will need to choose the values we want cyberspace to embrace. These questions are not addressed by any clear constitutional text or tradition. In the main, they are questions affecting the codifying part of our tradition, but they are also cases of latent ambiguity. There is no answer to them in the sense of a judgment that seems to have been made and that a court can simply report. An answer must be fixed upon, not found; made, not discovered; chosen, not reported.

This creates difficulties for an American court. We live in the shadow of the Supreme Court of Chief Justice Earl Warren. Many people think (but I am not one of this crowd) that his was a wildly activist court, that it made up constitutional law and imposed its own personal values onto the political and legal system. Many viewedthe Rehnquist Court as providing a balance to this activism of old.

I think this view is wrong. The Warren Court was not activist in any sense inconsistent with a principle of interpretive fidelity, and the Rehnquist Court was no less activist in that sense than the Warren Court. The question, however, is not what was true; the question is what people believe. What we believe is that the past was marked by activism, and that this activism was wrong.

At least wrong for a court. The opponents of the Warren Court are not just conservatives. Some are liberals who believe that the Court was not acting judicially.[10] These opponents believe that the Court was making, not finding, constitutional law that it was guided by nothing more than whether it could muster a majority.

Any court risks seeming like a Warren Court when it makes judgments that dont seem to flow plainly or obviously from a legal text. Any court is vulnerable when its judgments seem political. Against the background of history, our Supreme Court is particularly vulnerable to this view, and the Court will feel the reaction when its actions seem political.

My point is not that the Court fears retaliation; our Court is secure within our constitutional regime.[11] The Court feels the reaction to its seemingly political decisions because of its own image of its proper role. In its view, its role is not to be political; its conception is that it is to be a faithful agent, simply preserving founding commitments until they have changed.[12]

But when as in the cases of latent ambiguity there are no founding commitments to preserve, any attempt at translation will seem to be something more. And whenever it seems as if the Court is doing more than simply preserving founding commitments, the perception is created that the Court is simply acting to ratify its own views of a proper constitutional regime rather than enforcing judgments that have been constitutionalized by others.[13] In a word, it seems to be acting politically.

But what does political mean here? It does not mean simply that the Court is making value or policy choices. The claim is not that values are improper reasons for a court to decide a case. To the contrary: Value choices or policy choices, properly ratified by the political process, are appropriate for judicial enforcement. The problem with the choices in cases of latent ambiguity is that they do not seem to have been properly ratified by the political process. They reflect values, but the values do not seem to be taken from the Constitution.

Political thus refers to judgments not clearly ratified and presently contested.[14] When the very foundations of a judgment are seen to be fundamentally contested, and when there is no reason to believe that the Constitution takes a position on this contest, then enforcing a particular outcome of translation will appear, in that context, political.[15]

Cyberspace will press this problem intensely. When a framing value can be translated with some clarity or certainty, the Court can act in a way that resists present majorities in the name of founding commitments. But when ambiguities are latent and a choice really seems to be a choice, translation will not suffice. My claim is that the Court will not be the locus for that choice.

This might seem overly pessimistic, especially when we consider the success in striking down the Communications Decency Act.[16] But that case itself reveals the instability that I fear will soon resolve itself into passivity.

Throughout both lower court opinions, the courts spoke as if they were finding facts about the nature of cyberspace. The findings determined the constitutional result, and both courts reported their findings with a confidence that made them seem set in stone.

These findings, for the most part, were exceptionally good descriptions of where cyberspace was in 1996. But they did not tell us anything about where cyberspace is going or what it could be. The courts spoke as if they were telling us about the nature of cyberspace. But as weve seen, cyberspace has no intrinsic nature. It is as it is designed. By striking down Congresss efforts to zone cyberspace, the courts were not telling us what cyberspace is but what it should be. They were making, not finding, the nature of cyberspace; their decisions are in part responsible for what cyberspace will become.

At first it will not seem this way. When we confront something new, it is hard to know what is natural or given about it, and what part can be changed. But over time courts will see that there is little in cyberspace that is natural. Limits on the architecture of cyberspace that they have reported as findings in one opinion will be seen to have been design choices later on. What was impossible will later become possible, and as these shifts in the possible occur, courts will more and more feel that they cannot really say what cyberspace is. They will see that their findings affect what they find. They will see that they are in part responsible for what cyberspace has become.

This is Heisenberg applied to constitutional law. And as courts notice it, as they have in other areas, they will increasingly defer to the political branches: If these judgments are policy, they will be left to policy makers, not judges.[17]

One can hardly blame judges for this. Indeed, in some cases their deference should be encouraged.[18] But we should not underestimate its consequences. In the future legislatures will act relatively unconstrained by courts; the values that we might call constitutional whether enacted into our Constitution or not will constrain these legislatures only if they choose to take them into account.

Before we turn to what we might expect from legislatures, consider one other problem with courts specifically, the problem confronting our constitutional tradition as the Constitution moves into the context of cyberspace. This is the problem of state action.

Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import. Yet for the most part and fortunately these architectures are private. They are constructed by universities or corporations and implemented on wires no longer funded by the Defense Department. They are private and therefore traditionally outside the scope of constitutional review. The constitutional values of privacy, access, rights of anonymity, and equality need not trouble this new world, since this world is private and the Constitution is concerned only with state action.

Why this should be is not clear to me. If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase. Yet we are building it just outside the Constitutions review. Indeed, we are building it just so that the Constitution will not govern as if we want to be free of the constraints of value embedded by that tradition.

So far in this book, I have not relied very much on this private/public distinction. You might say I have ignored it.[19] But I have ignored it not because it makes no sense, but because I dont know how it could be carried over to the regulation of cyberspace. The concept of state action itself presents a latent ambiguity, and I dont think we have a clear idea of how to resolve it.

That latentambiguity is this: The Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature, the laws of economics, the natural law of man; they were not made by government or man.

These architectures constrained, of course, and their constraint was a regulation. But the degree to which they could be used as tools of self-conscious control was limited. Town planning was not limited,[20] and beyond laying out a space, there was little these founders could do about the rules that would govern the built environment of this space.

Cyberspace, however, has different architectures, whose regulatory power are not so limited. An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity is possible, what access is granted, what speech will be heard all these are choices, not facts. All these are designed, not found.

Our context, therefore, is very different. That the scope of constitutional review was limited in the first context does not compel it to be similarly limited in the second. It could be, but we cannot know that merely from its being so limited in a very different context.

We have no answer from the framers, then, about the scope of state action. We must decide on our own what makes better sense of our constitutional tradition. Is it more faithful to our tradition to allow these structures of control, the functional equivalent of law, to develop outside the scope of constitutional review? Or should we extend constitutional review to the structures of private regulation, to preserve those fundamental values within our tradition?

These are hard questions, though it is useful to note that they are not as hard to ask in other constitutional regimes. The German tradition, for example, would have less trouble with the idea that private structures of power must ultimately be checked against fundamental constitutional values.[21] The German tradition, of course, is not our own. But the fact that they have sustained this view suggests that we can make space for the constraint of the Constitution without turning everything into a constitutional dispute. Reasoned decision is possible without turning every private contract into a federal case.

Nevertheless, it will take a revolution in American constitutional law for the Court, self-consciously at least, to move beyond the limits of state action. Scholars have sketched how it could without radically remaking American law, but others have argued it could not without radically remaking the American Constitution.[22]

But my reason for ignoring the state action doctrine is not so much to radically remake law as it is to give us a clearer sense of how we should make the law in this new space in the first place. As Paul Berman puts it, the reason to ignore the state action doctrine for now is that:

. . . however such questions get resolved, at least we will have been forced to grapple with the substantive constitutional question and to articulate the competing values at stake. The state action doctrine, in contrast, takes such debates off the table altogether by asserting that the activity at issue is private and therefore not a fit subject for the constitutional discourse. If one believes that such discourse, in and of itself, has cultural value, then application of the state action doctrine comes with a significant cost.[23]

Again, it remains likely that we will continue to suffer this cost.

It is in these two ways then that courts are stuck. They cannot be as creative, and the scope of their constitutional review has been narrowed (artificially, I believe) to exclude the most important aspect of cyberspaces law code. If there are decisions about where we should go, and choices about the values this space will include, then these are choices we cant expect our courts to make.

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