There is much to admire in Stewart’s opinion, at least to the extent that he is willing to fashion tools for preserving the Constitution’s meaning in changed circumstances — or again, to the extent that he attempts to translate the protections of the Fourth Amendment into a modern context. There is also much to question[22]. But we can put those questions aside for the moment and focus on one feature of the problem that is fairly uncontentious.
While lines will be hard to draw, it is at least fairly clear that the framers made a conscious choice to protect privacy. This was not an issue off the table of their original debate or a question they did not notice. And this is not the “right to privacy” that conservatives complain about in the context of the right to abortion. This is the right to be free from state intrusion into the “sanctity” of a private home. State-enforced threats to individual privacy were at the center of the movement that led to the republic. Brandeis and Stewart simply aimed to effect that choice in contexts where the earlier structure had grown ineffectual.
Translations like these are fairly straightforward. The original values chosen are fairly clear; the way in which contexts undermine the original application is easily grasped; and the readings that would restore the original values are fairly obvious. Of course, such cases often require a certain interpretive courage — a willingness to preserve interpretive fidelity by changing an interpretive practice. But at least the direction is clear, even if the means are a bit unseemly[23].
These are the easy cases. They are even easier when we are not trying to carry values from some distant past into the future but instead are simply carrying values from one context into another. When we know what values we want to preserve, we need only be creative about how to preserve them.
Cyberspace will present many such easy cases. When courts confront them, they should follow the example of Brandeis: They should translate, and they should push the Supreme Court to do likewise. Where circumstances have changed to nullify the protections of some original right, the Court should adopt a reading of the Constitution that restores that right.
But some cases will not be so easy. Sometimes translation will not be an option, and sometimes the values that translation would track are values we no longer want to preserve. Sometimes we cannot tell which values translation would select. This was the problem in Chapter 2 with the worm, which made the point about latent ambiguities. Changing contexts sometimes reveals an ambiguity latent in the original context. We must then choose between two different values, either of which could be said to be consistent with the original value. Since either way could be said to be right, we cannot say that the original context (whether now or two hundred years ago) decided the case.
Professor Tribe describes an example in a founding article in the law of cyberspace, “The Constitution in Cyberspace.[24]” Tribe sketches a method of reading the Constitution in cyberspace that aims to make the Constitution “technologically neutral.” The objective is to adopt readings (or perhaps even an amendment) that make it plain that changes in technology are not to change the Constitution’s meaning. We must always adopt readings of the Constitution that preserve its original values. When dealing with cyberspace, judges are to be translators: Different technologies are the different languages, and the aim is to find a reading of the Constitution that preserves its meaning from one world’s technology to another[25].
This is fidelity as translation. This kind of translation speaks as if it is just carrying over something that has already been said. It hides the creativity in its act; it feigns a certain polite or respectful deference. This way of reading the Constitution insists that the important political decisions have already been made and all that is required is a kind of technical adjustment. It aims to keep the piano in tune as it is moved from one concert hall to another.
But Tribe then offers an example that may make this method seem empty. The question is about the meaning of the confrontation clause of the Sixth Amendment — the defendant’s right in a criminal trial “to be confronted with the witnesses against him.” How, Tribe asks, should we read this clause today?
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[26].
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[27].
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 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[28]. Constitutional law in cyberspace will reveal many more 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 — as long as we are capable of it. But here is the nub of the problem as I see it. As I argue in more detail in Part IV, given the current attitudes of our courts, and our legal culture generally, constitutional choices are costly. We are bad at making them; 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. 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[29]. 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[30].
22.
As the history of the Fourth Amendment's protection of privacy since Katz will attest, the technique used by Stewart was in the end quite ineffectual. When tied to property notions, no doubt the reach of the Fourth Amendment was narrow. But at least its reach went as far as the reach of property. Because "property" is a body of law independent of privacy questions, it was resilient to the pressures that privacy placed on it. But once the Court adopted the "reasonable expectation of privacy" test, it could later restrict these "reasonable expectations" in the Fourth Amendment context, with little consequence outside that context. The result has been an ever-decreasing scope for privacy's protection.
25.
See Lawrence Lessig, "Reading the Constitution in Cyberspace,"
28.
"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";
29.
See
30.
Related work has been done under the moniker the "New Judicial Minimalism." See Christopher J. Peters and Neal Devins, "Alexander Bickel and the New Judicial Minimalism," in