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 undermined by 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 Constitution’s 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 Constitution’s 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 Amendment’s 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 viewed the 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 don’t 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]
5.
See A. Leon Higginbotham Jr., "Racism in American and South African Courts: Simi larities and Differences,"
6.
These laws permitted compelled labor to pay a debt; see
8.
See, for example,
10.
See, for example, John Hart Ely,
11.
I've overstated the security of the American judiciary. An incident with District Court Judge Harold Baer suggests continued insecurity, especially in the context of the war on drugs. Baer released a criminal defendant after suppressing a search that had discovered eighty pounds of narcotics; Don Van Natta Jr., "Judge's Drug Ruling Likely to Stand,"
12.
I describe the Court's conception of its role in more detail in Lessig, "Translating Fed eralism."
13.
Robert H. Bork,
14.
See, for example, Felix Frankfurter,
15.
The relationship between a contested ground and a political judgment is more com plex than this suggests. I discuss it more extensively in Lawrence Lessig, "Fidelity and Constraint,"