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]
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.[16] But that case itself reveals the instability that I fear will soon resolve itself into passivity.
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.[17]
One can hardly blame judges for this. Indeed, in some cases their deference should be encouraged.[18] But we should not underestimate its consequences. In the future legislatures will act relatively unconstrained by courts; the values that we might call constitutional — whether enacted into our Constitution or not — will constrain these legislatures only if they choose to take them into account.
Before we turn to what we might expect from legislatures, consider one other problem with courts — specifically, the problem confronting our constitutional tradition as the Constitution moves into the context of cyberspace. This is the problem of “state action.”
Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import. Yet for the most part — and fortunately — these architectures are private. They are constructed by universities or corporations and implemented on wires no longer funded by the Defense Department. They are private and therefore traditionally outside the scope of constitutional review. The constitutional values of privacy, access, rights of anonymity, and equality need not trouble this new world, since this world is “private” and the Constitution is concerned only with “state action.”
Why this should be is not clear to me. If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase. Yet we are building it just outside the Constitution’s review. Indeed, we are building it just so that the Constitution will not govern — as if we want to be free of the constraints of value embedded by that tradition.
So far in this book, I have not relied very much on this private/public distinction. You might say I have ignored it.[19] But I have ignored it not because it makes no sense, but because I don’t know how it could be carried over to the regulation of cyberspace. The concept of state action itself presents a latent ambiguity, and I don’t think we have a clear idea of how to resolve it.
That latent ambiguity is this: The Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature, the laws of economics, the “natural law” of man; they were not made by government or man.
These architectures constrained, of course, and their constraint was a “regulation.” But the degree to which they could be used as tools of self-conscious control was limited. Town planning was not limited,[20] and beyond laying out a space, there was little these founders could do about the rules that would govern the built environment of this space.
Cyberspace, however, has different architectures, whose regulatory power are not so limited. An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity is possible, what access is granted, what speech will be heard — all these are choices, not “facts.” All these are designed, not found.
Our context, therefore, is very different. That the scope of constitutional review was limited in the first context does not compel it to be similarly limited in the second. It could be, but we cannot know that merely from its being so limited in a very different context.
We have no answer from the framers, then, about the scope of state action. We must decide on our own what makes better sense of our constitutional tradition. Is it more faithful to our tradition to allow these structures of control, the functional equivalent of law, to develop outside the scope of constitutional review? Or should we extend constitutional review to the structures of private regulation, to preserve those fundamental values within our tradition?
These are hard questions, though it is useful to note that they are not as hard to ask in other constitutional regimes. The German tradition, for example, would have less trouble with the idea that private structures of power must ultimately be checked against fundamental constitutional values.[21] The German tradition, of course, is not our own. But the fact that they have sustained this view suggests that we can make space for the constraint of the Constitution without turning everything into a constitutional dispute. Reasoned decision is possible without turning every private contract into a
