constraint might match this law constraint, the law constraint would be more efficient (if reducing parking violations were the only aim). There would be very few victims of this law before people conformed their behavior appropriately. But the “efficient result” would conflict with other values. If it is barbaric to incarcerate for life for the theft of a radio, it is all the more barbaric as a penalty for a parking violation. The regulator has a range of means to effect the desired constraint, but the values that these means entail need not align with their efficiency. The efficient answer may well be unjust — that is, it may conflict with values inherent in the norms, or law (constitution), of the society.
Law-talk typically ignores these other regulators and how law can affect their regulation. Many speak as if law must simply take the other three constraints as given and fashion itself to them[23].
I say “as if” because today it takes only a second’s thought to see that this narrowness is absurd. There were times when these other constraints were treated as fixed — when the constraints of norms were said to be immovable by governmental action[24], or the market was thought to be essentially unregulable[25], or the cost of changing real-space code was so high as to make the thought of using it for regulation absurd[26]. But we see now that these constraints are plastic[27]. They are, as law is, changeable, and subject to regulation.
The examples are obvious and many. Think first about the market: talk of a “free market” notwithstanding, there is no more heavily regulated aspect of our life [28]. The market is regulated by law not just in its elements — it is law that enforces contracts, establishes property, and regulates currency — but also in its effects. The law uses taxes to increase the market’s constraint on certain behaviors and subsidies to reduce its constraint on others. We tax cigarettes in part to reduce their consumption, but we subsidize tobacco production to increase its supply. We tax alcohol to reduce its consumption. We subsidize child care to reduce the constraint the market puts on raising children. In many such ways the constraint of law is used to change the constraints of the market.
Law can also change the regulation of architecture. Think about the Americans with Disabilities Act (ADA)[29]. Many of the “disabled” are cut off from access to much of the world. A building with only stairs is a building that is inaccessible to a person in a wheelchair; the stairs are a constraint on the disabled person’s access to that building. But the ADA in part aims to change that constraint by requiring builders to change the design of buildings so that the disabled are not excluded. Here is a regulation of real-space code, by law, to change the constraint that real-space code creates.
Other examples are even better.
• Some of the power of the French Revolution derived from the architecture of Paris: The city’s small and winding streets were easily barricaded, making it possible for revolutionaries to take control of the city with relatively little absolute strength. Louis Napoleon III understood this, and in 1853 he took steps to change it[30]. Paris was rebuilt, with wide boulevards and multiple passages, making it impossible for insurgents to take control of the city.
• Every schoolchild learns of L’Enfant’s design to make an invasion of Washington difficult. But more interesting is the placement of the White House relative to the Capitol. The distance between them is one mile, and at the time it was a mile through difficult terrain (the mall was a swamp). The distance was a barrier meant to tilt the intercourse between Congress and the president by making it marginally more difficult for them to connect — and thereby more difficult for the executive to control the legislature.
• This same idea has influenced the placement of constitutional courts in Europe. Throughout Europe constitutional courts were placed in cities other than the capital. In Germany the court is in Karlsruhe rather than Berlin; in the Czech Republic it is in Brno rather than Prague. The reason again is tied to the constraint of geography: Placing constitutional courts far away from legislatures and executives was meant to minimize both the pressure the latter two bodies could place on the court and reduce the court’s temptation to bow to it.
• The principle is not limited to high politics. Designers of parking garages or streets where children may play place speed bumps in the road so that drivers must slow down. These structures have the same purpose as a speed limit or a norm against driving too fast, but they operate by modifying architecture.
• Neither is the principle limited to virtuous regulation: Robert Moses built bridges on Long Island to block buses, so that African Americans, who depended primarily on public transportation, could not easily get to public beaches[31]. That was regulation through architecture, invidious yet familiar.
• Nor is it limited to governments. A major American airline noticed that passengers on early Monday morning flights were frustrated with the time it took to retrieve bags from the plane. They were much more annoyed than other passengers, even though it took no longer than average to retrieve the bags from these flights. The company began parking these flights at gates farther away from baggage claim, so that by the time the passengers arrived at baggage claim, their bags were there. Frustration with the baggage handling system was eliminated.
• A large hotel in an American city received many complaints about the slowness of its elevators. It installed mirrors next to the elevator doors. The complaints ended.
• Few are likely to recognize the leading regulation-through-architecture proponent of the 20th century — Ralph Nader. It is astonishing today to read his account of the struggle to get safety standards enforced upon auto makers. Nader’s whole objective was to get the law to force car manufacturers to build safer cars. It is obvious today that the code of cars is an essential part of auto safety. Yet on this basic point, there was fundamental disagreement[32].
• Neal Katyal has extensively considered the relationship of architecture to criminal law, from the deployment of street lights to the design of public spaces to maximize visibility[33]. The 2000 Sydney Olympics, for example, “self-consciously employed architecture to reduce crime.[34]” And architects have begun to identify principles of design that can minimize crime — called “Crime Prevention Through Environmental Design.[35]”
In each example, an architecture is changed so as to realize different behavior. The architecture effects that difference. As a sign above one of the portals at the 1933 Chicago World’s Fair put it (though it was speaking of science): “Science Explores: Technology Executes: Man Conforms. [36]”
Law can change social norms as well, though much of our constitutional jurisprudence seems dedicated to forgetting just how[37]. Education is the most obvious example. As Thurgood Marshall put it, “Education is not the teaching of the three R’s. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law.[38]” Education is, in part at least, a process through which we indoctrinate children into certain norms of behavior — we teach them how to “say no” to sex and drugs. We try to
