Wrong for a court, at least. The opponents of the Warren Court are not just conservatives. Some are liberals who believe that the Court was not acting judicially.¹ 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. 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.² 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.³

But when—as in the cases of latent ambiguity—there are no founding commitments to preserve, then 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.⁴ 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.⁵ 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.⁶

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.⁷ But that case itself reveals the instability that I fear will soon resolve itself into passivity. [NEEDS UPDATING: discussion should in clude C.O.P.A. and C.I.P.A. of course...]

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 we’ve seen, cyberspace has no intrinsic nature. It is as it is designed. By striking down Congress’s 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.⁸

Footnotes

¹ See, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980). Edit Delete

² I’ve overstated the security of the American judiciary. A recent 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,” New York Times, January 28, 1996, 27. The decision was then attacked by presidential candidate Robert Dole, who called for Baer’s impeachment; Katharine Q. Seelye, “A Get Tough Message at California’s Death Row,” New York Times, March 24, 1996, 29. President Clinton then joined the bandwagon, suggesting that he might ask for Baer’s resignation if Baer did not reverse his decision; Alison Mitchell, “Clinton Pressing Judge to Relent,” New York Times, March 22, 1996, 1. Baer then did reverse his decision; Don Van Natta Jr., “Under Pressure, Federal Judge Reverses Decision in Drug Case,” New York Times, April 2, 1996, 1. Chief Judge Jon Newman, of the Second Circuit Court of Appeals, along with other judges, then criticized Dole’s criticism of Baer, arguing that he went “too far”; Don Van Natta Jr., “Judges Defend a Colleague from Attacks,” New York Times, March 29, 1996, B1. Soviet citizens would recognize the pattern. Edit Delete

³ I describe the Court’s conception of its role in more detail in Lessig, “Translating Federalism.” Edit Delete

⁴ Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978), 83. Edit Delete

⁵ See, for example, Felix Frankfurter, The Commerce Clause Under Marshall, Taney, and Waite (Chapel Hill: University of North Carolina Press, 1937): 82. Edit Delete

⁶ The relationship between a contested ground and a political judgment is more complex than this suggests. I discuss it more extensively in Lawrence Lessig, “Fidelity and Constraint,” Fordham Law Review 65 (1997): 1365. Edit Delete

⁷ ACLU v Reno, 929 FSupp 824 (EDPa 1996); Shea v Reno, 930 FSupp 916 (SDNY 1996). Edit Delete

⁸ I discuss this in Lessig, “Fidelity and Constraint.” Edit Delete