Code 2.0

So, for example, the translations to support federalism are translations on the right, while the translations to support criminal rights are translations on the left.

19.

Katz v. United States, 389 US 347, 353 (1967).

20.

Laurence H. Tribe, 'The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier,' address at the First Conference on Computers, Freedom, and Privacy, March 26, 1991, reprinted in The Humanist (September-October 1991): 15, 20–21.

21.

Katz v. United States, 389 US 347, 351 (1967).

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.

23.

See Lessig, 'Translating Federalism,' 206–11.

24.

Tribe, 'The Constitution in Cyberspace,' 15.

25.

See Lawrence Lessig, 'Reading the Constitution in Cyberspace,' Emory Law Journal 45 (1996): 869, 872.

26.

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

27.

See Tribe, 'The Constitution in Cyberspace,' 15.

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'; Williston on Contracts, 3d ed., edited by Walter H. E. Jaeger (Mount Kisco, N.Y.: Baker, Voorhis, 1957), 627, 898.

29.

See United States v. Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis senting).

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 The Judiciary and American Democracy, Kenneth D. Ward and Cecilia R. Castillo, eds. (Albany: State University of New York Press, 2005).

31.

See Bernard Williams, 'The Relations of Philosophy to the Professions and Public Life,' unpublished manuscript.

32.

For a strong argument against a strong role for judicial review in matters such as this, see Orin Kerr, 'The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,' Michigan Law Review 102 (March 2004): 801.

Chapter Ten Notes

1.