At the time of the founding, he argues, the technology of confrontation was simple—confrontation was two-way. If a witness confronted the accused, the accused, of necessity, confronted the witness. This was a necessity given to us by the technology of the time. But today it is possible for confrontation to be one-way—the witness confronts the accused, but the accused need not confront the witness. The question then is whether the confrontation clause requires one-way or two-way confrontation.¹

Let us grant that Tribe’s descriptions of the available technologies are correct and that the framers embraced the only confrontation clause that their technology permitted. The real question comes in step two. Now that technology allows two possibilities—one-way or two-way confrontation—which does the Constitution require?

The Court’s answer in its 1990 decision in Maryland v Craig was clear: the Constitution requires only one-way confrontation. A confrontation clause regime that permits only one-way confrontation, at least when there are strong interests in not requiring two, is a fair translation of the original clause.²

As a matter of political choice, I certainly like this answer. But I do not see its source. It seems to me that this is a question the framers did not decide, and a question that if presented to them might well have divided them. Given the technology of 1791, they did not have to decide between one-way and two-way confrontation; given the conflict of values at stake, it is not obvious how they would have decided it. Thus, to speak as if there were an answer here that the framers simply gave us is a bit misleading. The framers gave no answer here, and in my view, no answer can be drawn from what they said.

Like the worm in chapter 2, the confrontation clause presents a latent ambiguity.³ Constitutional law in cyberspace will reveal many such latent ambiguities. And these ambiguities offer us a choice: How will we go on?

Choices are not terrible. It is not a disaster if we must make a decision—so long, that is, as we are capable of it. But here is the nub of the problem that I see. As I argue in more detail in part 4, given the current attitudes of our courts, and our legal culture generally, constitutional choices are costly. We are bad at making these choices; we are not likely to get better at it soon.

When there is no answer about how to proceed—when the translation leaves open a question—we have two sorts of responses in constitutional practice. One response is passive: the court simply lets the legislature decide as it will. This is the response that Justice Scalia presses in the context of the Fourteenth Amendment. On matters that, to the framers, were “undebatable,” the Constitution does not speak.⁴ In this case, only the legislature can engage, and press, questions of constitutional value and thus say what the Constitution will continue to mean.

The second response is more active: the court finds a way to articulate constitutional values that were not present at the founding. The courts help spur a conversation about these fundamental values—or at least add their voice to this conversation—to focus a debate that may ultimately be resolved elsewhere. The first response is a way of doing nothing; the second is a way of exciting a dialogue about constitutional values as a means to confronting and resolving new questions.

My fear about cyberspace is that we will respond in the first way—that the institutions most responsible for articulating constitutional values will simply stand back while issues of constitutional import are legislatively determined. The institutions most responsible for articulating constitutional values today are the courts. My sense is that they will step back because they feel (as the balance of this book argues) that these are new questions that cyberspace has raised. Their newness will make them feel political, and when a question feels political, courts step away from resolving it.

I fear this not because I fear legislatures, but because in our day constitutional discourse at the level of the legislature is a very thin sort of discourse. The philosopher Bernard Williams has argued that because the Supreme Court has taken so central a role in the articulation of constitutional values, legislatures no longer do.⁵ Whether Williams is correct or not, this much is clear: the constitutional discourse of our present Congress is far below the level it must be at to address the questions about constitutional values that will be raised by cyberspace.

How we could reach beyond this thinness of discourse is unclear. We are in a time when constitutional thought has been for too long the domain of lawyers and judges. We have been trapped by a mode of reasoning that pretends that all the important questions have already been answered, that our job now is simply to translate them for modern times. As a result, we do not quite know how to proceed when we think the answers are not already there. As nations across the world struggle to express and embrace constitutional values, we, with the oldest written constitutional tradition, have lost the practice of embracing, articulating, and deciding on constitutional values.

I return to this problem in chapter 15. For now, my point is simply descriptive. Translation is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts. But in the four applications that follow, I press the question: Is the past enough? Are there choices the framers did not address? Are they choices that we could make?

Footnotes

¹ This example is drawn from Maryland v Craig, 497 US 836 (1990). Edit Delete

² See Tribe, “The Constitution in Cyberspace,” 15. Edit Delete

³ “A latent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous. The usual instance of a latent ambiguity is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally”; Williston on Contracts, 3d ed., edited by Walter H. E. Jaeger (Mount Kisco, N.Y.: Baker, Voorhis, 1957), 627, 898. Edit Delete

⁴ See United States v Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dissenting). Edit Delete

⁵ See Bernard Williams, “The Relations of Philosophy to the Professions and Public Life,” unpublished manuscript. Edit Delete