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Links: Technology and the Constitution
Posted by Steven Wu on Sunday, June 20 @ 00:56:39 EDT Governance
O. Carter Snead over at The New Atlantis has written an article entitled "Technology and the Constitution." In it, he asks the following question:
How does technological innovation affect one particular approach to constitutional interpretation--"originalist textualism," the belief that the text of the Constitution should be construed and applied accordingto its originalmeaning?
His answer:
The fundamental value that originalist textualism seeks to advance is a particular conception of self governance through democratic means, and it is this value that shapes its legal response to technological change. It bespeaks a faith in democratic processes (rather than constitutional adjudication) as the chief means for addressing the problems of technology.
A brief response inside.

If Snead is right, then his account also shows why originalism is such an impoverished way of adjudicating technological conflicts. Legal incongruence with evolving technology develops only one injustice at a time. But legislative action--especially national legislative action, which is the exclusive form of legislation for certain areas--can only get off the ground after a sufficient number of injustices have already occurred.

To argue, as originalists do, that judges can do nothing about legal incongruity with technology other than point it out, despite the individual injustice that may occur in each case, is to insist that the injustice of these early cases are just the price we have to pay to be "faithful" to democracy. But this approach not only eliminates judges as full participants in a national dialogue on how to adapt the law--participants whose opinions are particularly useul because they see how the law is actually applied on the ground. It also just gives up on the people in these early cases even it becomes clear, well before the ponderous legislature gets itself going, that something is very wrong with our system.

(Of course, as Snead's article makes clear, even ostensible originalists seem to realize that it would be manifestly unfair to always defer to the legislature, even if it gives no sign of doing anything about legal incongruity with technology.)

 
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