45 Emory L.J. Number 3(1996) READING THE CONSTITUTION IN CYBERSPACE Lawrence Lessig We might distinguish between two types of constitutional re- gimes, one codifying, the other transformative. A codifying consti- tutional regime aims at preserving something essential from the then- current constitutional or legal culture--to protect it against change in the future; a transformative constitutional regime aims at changing something essential in the then-current constitutional or legal cul ture--to make it different in the future. The picture of the codifying regime is Ulysses tied to the mast; the picture of the transformative is revolutionary In our constitutional tradition the Constitution of 1791 was codifying constitution-the Bill of Rights, that is, was a constitu tional regime that sought to entrench certain practices and values against change. I The Civil War Amendments, on the other hand were transformative, aiming to remake something of what the American social and legal culture had become to tear out from the American soul its tradition of inequality, and replace it with a prac- tice of equalit Professor of Law, University of Chicago School of Law. Thanks to the ever- present Chicago roundtable, as well as Bruce Ackerman, Tracey Meares, and Judge Richard Posner, for helpful advice. Funding for this project was provided by the russell Baker Scholars Fund and the Sarah Scaife Foundation. Thanks also to Ashley Parrish for the exceptional work that is his norm See,e. g, JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 302(1996). See also Akhil Reed Amar, he Bill of Rights as a Constitution, 100 YALE L.J. 1131(1991), for another such understanding of the Bill of Rights 2 This is not to deny that there were aspects of the equality in the Civil War Amendments that echoed in our constitutional past. The abolitionists, of made great weight of the Declaration of Independences claims to equality. See, e.g,Trisha Olson, The Natural Law Foundation of the Privileges or Immunities lause of the Fourteenth Amendment, 48 ARK. L. REv. 347, 364(1995). But
45 Emory L.J. Number 3 (1996) READING THE CONSTITUTION IN CYBERSPACE Lawrence Lessig† We might distinguish between two types of constitutional regimes, one codifying, the other transformative. A codifying constitutional regime aims at preserving something essential from the thencurrent constitutional or legal culture—to protect it against change in the future; a transformative constitutional regime aims at changing something essential in the then-current constitutional or legal culture—to make it different in the future. The picture of the codifying regime is Ulysses tied to the mast; the picture of the transformative is revolutionary France. In our constitutional tradition, the Constitution of 1791 was a codifying constitution—the Bill of Rights, that is, was a constitutional regime that sought to entrench certain practices and values against change.1 The Civil War Amendments, on the other hand, were transformative, aiming to remake something of what the American social and legal culture had become, to tear out from the American soul its tradition of inequality, and replace it with a practice of equality.2 † Professor of Law, University of Chicago School of Law. Thanks to the everpresent Chicago roundtable, as well as Bruce Ackerman, Tracey Meares, and Judge Richard Posner, for helpful advice. Funding for this project was provided by the Russell Baker Scholars Fund and the Sarah Scaife Foundation. Thanks also to Ashley Parrish for the exceptional work that is his norm. 1 See, e.g., JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 302 (1996). See also Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131 (1991), for another such understanding of the Bill of Rights. 2 This is not to deny that there were aspects of the equality in the Civil War Amendments that echoed in our constitutional past. The abolitionists, of course, made great weight of the Declaration of Independence’s claims to equality. See, e.g., Trisha Olson, The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment, 48 ARK. L. REV. 347, 364 (1995). But
45 EMORY L J. NO. 3(1996) One might well be skeptical of transformative constitutionalism generally. One could be skeptical enough about our own transfor- mative past, let alone of the prospects for some of the more promi- nent transformations in post-communist Europe. In this essay, hoy ever, I will be skeptical of codifying constitutionalism. And I am skeptical here at a conference about cyberspace because cyberspace will make plain just how difficult a practice codifying constitution- alism really is We might think of the problem like this: A codify ing constitution enacts a set of legal constraints on (in our tradition) governmental action.3 But these constraints are just one kind of constraint on gov- ernmental action. The other we might call the constraints of technol- ogy. The warrant requirement is a legal constraint on police action; that the police, unlike Superman, don' t have x-ray vision is a tech nological constraint. We dont think much about technological con- straints when thinking of the constraints of law. We usually just take them for granted. But we should. For what draws into doubt codi fying constitutionalism is just what happens when these constraints of technology change, or more importantly, when we have the power to change them The Fourth Amendment is a ready example. At the time of the founding, the technologies for invading an individual's private space were few. There were spies, eavesdropping and listening through windows or doors, but all these are fairly costly technologies meaning that the ability to live free of review within the confines of one's home was fairly strong. This is not to say that life at the framing was more private-certainly neighbors were more nosy and certainly most of one's life was more public. But within one's home, or one s own papers, the ability of the state to monitor what was going on was quite slight and crude The common law of trespass and the protections of the Fourth Amendment rested upon this fairly crude technology of surveillance ey supplemented these technological constraints with legal con straints. The common law of trespass made it an offense for anyone to cross over into my property; the Fourth Amendment made it an an amendment can be transformative even if it is simply recalling a part of the past, and reestablishing it. This, for example, is what Germany did after World War ll 3 Other constitutional regimes, of course, have been understood to restrain more han governmental action. Germany is a prominent example. See DAVid CURRIE THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 182-83 A See, e.g., RICHARD A POSNER, THE ECONOMICS OF JUSTICE 268-71(1981)
45 EMORY L. J. NO. 3 (1996) — 2 — One might well be skeptical of transformative constitutionalism generally. One could be skeptical enough about our own transformative past, let alone of the prospects for some of the more prominent transformations in post-communist Europe. In this essay, however, I will be skeptical of codifying constitutionalism. And I am skeptical here at a conference about cyberspace because cyberspace will make plain just how difficult a practice codifying constitutionalism really is. We might think of the problem like this: A codifying constitution enacts a set of legal constraints on (in our tradition) governmental action.3 But these constraints are just one kind of constraint on governmental action. The other we might call the constraints of technology. The warrant requirement is a legal constraint on police action; that the police, unlike Superman, don’t have x-ray vision is a technological constraint. We don’t think much about technological constraints when thinking of the constraints of law. We usually just take them for granted. But we should. For what draws into doubt codifying constitutionalism is just what happens when these constraints of technology change, or more importantly, when we have the power to change them. The Fourth Amendment is a ready example. At the time of the founding, the technologies for invading an individual’s private space were few. There were spies, eavesdropping and listening through windows or doors; but all these are fairly costly technologies, meaning that the ability to live free of review within the confines of one’s home was fairly strong. This is not to say that life at the framing was more private—certainly neighbors were more nosy, and certainly most of one’s life was more public.4 But within one’s home, or one’s own papers, the ability of the state to monitor what was going on was quite slight and crude. The common law of trespass and the protections of the Fourth Amendment rested upon this fairly crude technology of surveillance. They supplemented these technological constraints with legal constraints. The common law of trespass made it an offense for anyone to cross over into my property; the Fourth Amendment made it an an amendment can be transformative even if it is simply recalling a part of the past, and reestablishing it. This, for example, is what Germany did after World War II. 3 Other constitutional regimes, of course, have been understood to restrain more than governmental action. Germany is a prominent example. See DAVID CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 182-83 (1995). 4 See, e.g., RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 268-71 (1981)
READING THE CONSTITUTION IN CYBERSPACE nse for a(federal) officer to escape the proscriptions of the mon law. unless that officer had either a warrant or the search was under the circumstances. reasonable 5 Without a warrant. or without sufficient cause an officer of the state was liable in damage for the trespass. This liability strengthened the protection of privacy beyond protections of the technological constraints These technological and these legal constraints combined to de- fine the constraints that confronted the state as it desired if it de- sired to intrude into a citizen's private domain The sum of these constraints, both legal and technological, might be said to define the domain of security that the individual had against such intrusion Now it is a commonplace that a constitution, at least a codifying constitution, is to preserve these legal constraints against the changes of time. It is a commonplace, that is, that a courts task is to assure that framing values of dignity and liberty are maintained passions for"law and order" notwithstanding. It is a commonplace though, in the context of the Fourth Amendment, that is increasingly ignored. 7 But whether respected in practice or in the breach, at least our ideals are clear-at least we are clear about what we are sup posed to do. about legal values that the Framers constitutionalized we are to be firm: preserving them against the changes in passions that later generations might bring But what should we do about changes in technology? What is a court to do when technologies make it easier for police to monitor what happens inside the home? Or when technologies make it easier for citizens to hide? Here the question is more difficult, and we have at least one clear example of two very different responses we he case is Olmstead v United States, 8 and the question was ther wiretapping was within the se ment. The Court held it was not. when the Constitution was en- acted. said Chief Justice Taft the Fourth amendment was intended to limit trespass on property; that was the common law origin of the 5 TELFORD TAYLOR. TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 21 50(1969): Amar, supra note 1, at 1178-80 6 Minnesota v. Dickerson, 508 U.S. 366, 380-83(1993)(Scalia,J,concur 7 See, e. g, Tracey Maclin, When the Cure for the Fourth Amendment Is Worse than the disease, 68 S CAL L. REV. 1(1994) 8 277 U.S. 438(1928). See also JAMES BOYD WHITE, JUSTICE AS TRANS LATION149-57(1989)
READING THE CONSTITUTION IN CYBERSPACE — 3 — offense for a (federal) officer to escape the proscriptions of the common law, unless that officer had either a warrant, or the search was, under the circumstances, reasonable.5 Without a warrant, or without sufficient cause, an officer of the state was liable in damages for the trespass. This liability strengthened the protection of privacy beyond protections of the technological constraints. These technological and these legal constraints combined to define the constraints that confronted the state as it desired, if it desired, to intrude into a citizen’s private domain. The sum of these constraints, both legal and technological, might be said to define the domain of security that the individual had against such intrusion. Now it is a commonplace that a constitution, at least a codifying constitution, is to preserve these legal constraints against the changes of time. It is a commonplace, that is, that a court’s task is to assure that framing values of dignity6 and liberty are maintained, passions for “law and order” notwithstanding. It is a commonplace, though, in the context of the Fourth Amendment, that is increasingly ignored.7 But whether respected in practice or in the breach, at least our ideals are clear—at least we are clear about what we are supposed to do. About legal values that the Framers constitutionalized, we are to be firm: preserving them against the changes in passions that later generations might bring. But what should we do about changes in technology? What is a court to do when technologies make it easier for police to monitor what happens inside the home? Or when technologies make it easier for citizens to hide? Here the question is more difficult, and we have at least one clear example of two very different responses. The case is Olmstead v. United States, 8 and the question was whether wiretapping was within the scope of the Fourth Amendment. The Court held it was not. When the Constitution was enacted, said Chief Justice Taft, the Fourth Amendment was intended to limit trespass on property; that was the common law origin of the 5 TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 21- 50 (1969); Amar, supra note 1, at 1178-80. 6 Minnesota v. Dickerson, 508 U.S. 366, 380-83 (1993) (Scalia, J., concurring). 7 See, e.g., Tracey Maclin, When the Cure for the Fourth Amendment Is Worse than the Disease, 68 S. CAL. L. REV. 1 (1994). 8 277 U.S. 438 (1928). See also JAMES BOYD WHITE, JUSTICE AS TRANSLATION 149-57 (1989)
45 EMORY L J. NO. 3(1996) Amendment. Wiretapping a person's phone is not a trespass; there fore, concluded Taft, wiretapping did not invade the Fourth Amendment's interests Justice Brandeis saw the case differently. Of course the Fourth Amendment originally protected against trespass, but this was be- cause trespass was the only effective way that the state could invade privacy interests. Sure, it could eavesdrop without trespassing, so it could in some sense intrude without constitutional violation: but eavesdropping was of little importance at the founding since police were nonexistent, and eavesdropping quite public. And in any case eavesdropping is not as significant an invasion as the invasion that would be permitted if the government could tap phones without limit. For even in 1928. much of life had moved onto the wires and in those first steps into cyberspace, Brandeis argued, the Constitu tion should not leave citizens exposed o What had changed, he ar gued, was a technology of surveillance and a technology of commu nication II Life existed now in cyberspace, and the Constitution should be read to protect the same interests of privacy in cyberspace that the Framers had protected in real space. Technology had changed. but Brandeis argued that change should not be allowed to change the meaning of the Constitution. 2 The Constitution should protect now what it protected then If there is a justice who deserves c-world's praise, if there is an opinion of the Supreme Court that should be the model for cy be activists, if there is a first chapter in the fight to protect cyberspace it is this Justice, this opinion and this case. Here, in as clear an ex ample as any, is a method that will be central to cyberspaces sur vival as a place where values of individual liberty are sustained. The 9 As Brandeis wrote, "When the Fourth and Fifth Amendments were adopted, the form that evil had theretofore taken had been necessarily simple. 277 U.S.at 473 10 The an iae from the telephone companies in the Olmstead case pre ented quite effectively the place the telephone had taken in the ordinary life of most citizens. See Brief in Support of Petitioners'Contention, on behalf of Pa cific Telephone and Telegraphy Co., et al., Olmstead, 277 U.S. 438 1l277Us.at473 12 Brandeis's fears were well stated: "Ways may some day be developed by which the Government, without removing papers from secret drawers, can repro- duce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. ld at 474
45 EMORY L. J. NO. 3 (1996) — 4 — Amendment. Wiretapping a person’s phone is not a trespass; therefore, concluded Taft, wiretapping did not invade the Fourth Amendment’s interests. Justice Brandeis saw the case differently. Of course the Fourth Amendment originally protected against trespass, but this was because trespass was the only effective way that the state could invade privacy interests.9 Sure, it could eavesdrop without trespassing, so it could in some sense intrude without constitutional violation; but eavesdropping was of little importance at the founding since police were nonexistent, and eavesdropping quite public. And in any case, eavesdropping is not as significant an invasion as the invasion that would be permitted if the government could tap phones without limit. For even in 1928, much of life had moved onto the wires; and in those first steps into cyberspace, Brandeis argued, the Constitution should not leave citizens exposed.10 What had changed, he argued, was a technology of surveillance and a technology of communication.11 Life existed now in cyberspace, and the Constitution should be read to protect the same interests of privacy in cyberspace that the Framers had protected in real space. Technology had changed, but, Brandeis argued, that change should not be allowed to change the meaning of the Constitution.12 The Constitution should protect now what it protected then. If there is a Justice who deserves c-world’s praise, if there is an opinion of the Supreme Court that should be the model for cyberactivists, if there is a first chapter in the fight to protect cyberspace, it is this Justice, this opinion and this case. Here, in as clear an example as any, is a method that will be central to cyberspace’s survival as a place where values of individual liberty are sustained. The 9 As Brandeis wrote, “When the Fourth and Fifth Amendments were adopted, the form that evil had theretofore taken had been necessarily simple.” 277 U.S. at 473. 10 The amici curiae from the telephone companies in the Olmstead case presented quite effectively the place the telephone had taken in the ordinary life of most citizens. See Brief in Support of Petitioners’ Contention, on behalf of Pacific Telephone and Telegraphy Co., et al., Olmstead, 277 U.S. 438. 11 277 U.S. at 473. 12 Brandeis’s fears were well stated: “Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” Id. at 474
READING THE CONSTITUTION IN CYBERSPACE method is translation 13 Brandeis first identifies values from the original fourth amendment, and then translates these values into the context of cyberspace. He read beyond the specific applications that the Framers had in mind, to find the meaning they intended to con- stitutionalize. He found a way to read the Constitution in 1928 to preserve the meaning it had in 1791. Brandeis's opinion shows how to carry the Framers values into our interpretive context, in a way that has an extremely strong claim to constitutional fidelity. The ar gument was as simple as it was compelling: By doing what the Framers would have done, Brandeis argued, the Court would change the Constitution's meaning(since now a large part of inti mate life was open to governmental intrusion without the protections of the Fourth Amendment and by doing something other than what the Framers would have done(by protecting something more than trespass), the Court could preserve the Constitutions meaning In the almost seventy years since Brandeis's opinion, we ha vent any better example of the translators craft. Unlike originalist who believe that fidelity requires doing just what the Framers would have done, 4 the translator understands that to preserve meaning across contexts. one must change readings across context 15 This is what the linguistic translator does: In Germany, she says" danke In France, she says"merci. In the two places she has said different things, but in both places, she has meant the very same thing. Con- texts are different, so meaning is preserved by saying something different The most cyberspace could hope for, from judges at least, is the practice that Brandeis offered the most we could aspire to, in inter- preting our Constitution, is the sensitivity that he displayed. But in this article, I want to point to the limits of even this method of inter- pretive fidelity. Translation may well be fidelity's best method; but 13 Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 218(1980). For a recent application, see William Michael Treanor, The Original Understanding of the Takings Clause and the politico Process, 95 COLUM. L. REV. 782 (1995). See generally Lawrence Lessig, Fidel- ity in Tr 1165(1993); Larry Alexander, All or Noth ing at All? The Intentions of Authorities and the Authority of Intentions,in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 371-75(1995); and RICHARD A POSNER, OVERCOMING LAW 494-97(1995)for useful criticism of the method 14 This we might call"one-step"originalism. See Lessig, supra note 13,at 15 And this we might call"two-step"originalism. Id
READING THE CONSTITUTION IN CYBERSPACE — 5 — method is translation: 13 Brandeis first identifies values from the original Fourth Amendment, and then translates these values into the context of cyberspace. He read beyond the specific applications that the Framers had in mind, to find the meaning they intended to constitutionalize. He found a way to read the Constitution in 1928 to preserve the meaning it had in 1791. Brandeis’s opinion shows how to carry the Framers’ values into our interpretive context, in a way that has an extremely strong claim to constitutional fidelity. The argument was as simple as it was compelling: By doing what the Framers would have done, Brandeis argued, the Court would change the Constitution’s meaning (since now a large part of intimate life was open to governmental intrusion without the protections of the Fourth Amendment); and by doing something other than what the Framers would have done (by protecting something more than trespass), the Court could preserve the Constitution’s meaning. In the almost seventy years since Brandeis’s opinion, we haven’t any better example of the translator’s craft. Unlike originalists who believe that fidelity requires doing just what the Framers would have done,14 the translator understands that to preserve meaning across contexts, one must change readings across context.15 This is what the linguistic translator does: In Germany, she says “danke.” In France, she says “merci.” In the two places she has said different things, but in both places, she has meant the very same thing. Contexts are different, so meaning is preserved by saying something different. The most cyberspace could hope for, from judges at least, is the practice that Brandeis offered; the most we could aspire to, in interpreting our Constitution, is the sensitivity that he displayed. But in this Article, I want to point to the limits of even this method of interpretive fidelity. Translation may well be fidelity’s best method; but 13 Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 218 (1980). For a recent application, see William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995). See generally Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993); Larry Alexander, All or Nothing at All? The Intentions of Authorities and the Authority of Intentions, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 371-75 (1995); and RICHARD A. POSNER, OVERCOMING LAW 494-97 (1995) for useful criticism of the method. 14 This we might call “one-step” originalism. See Lessig, supra note 13, at 1183-85. 15 And this we might call “two-step” originalism. Id