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Kerr, Kramer, and Code - Ridgway (originally posted to the Code email list Nov. 5th)

Toward the conclusion of chapter 9 ("Translation"), Professor Lessig laments the "thinness" of constitutional discourse outside of the domain of lawyers and judges. He references Bernard Williams's thesis that Supreme Court hyperactivity within constitutional discourse accounts for legislative shirking. While Lessig doesn't take sides as to the cause, he certainly agrees with the effect: "constitutional discourse of our present Congress is far below the level it must be at to address the questions of constitutional values." Thus, by implication, he resorts to the judiciary to preserve these constitutional values. This is a familiar move in social movements: after facing indifference or hostility from the people and their legislatures, they seek refuge in the judiciary. Yet five years and two Supreme Court cases later ( Eldred and Grokster), it's clear that the this movement cannot take the easy way out.

Kerr sees this as an opportunity, and invokes the converse of Bernard Williams's argument, that "judicial deference has often invited Congressional regulation." Kerr essentially calls out the legal academy for its infatuation with the Supreme Court ("Law professors love constitutional law"). But I don't think he goes far enough; he still comfortably situates within the law. Instead, Code teaches us that law constitutes only one modality of regulation. Constitutional values embodied in grand legal pronounces remain rather hollow if the other modalities are ignored. Lessig's efforts subsequent to Eldred embody this understanding: one must inculcate constitutional values into our code, norms, market, and law to achieve the right kind of liberty. I think it's worth mentioning this shift at the end of the translation chapter.

*The reference to Orin Kerr comes from "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," 102 Mich. L. Rev. 801 (March, 2004)