In Defense of the Bill of Rights

I write not to advocate that our current Bill of Rights be supplemented with a more updated, clearer set of protections for the digital age, but rather to argue that the current document is well-equipped to handle the challenges of a technological transformation. What we need is not a new set of guidelines, but a thorough, fearless approach to enforcing the limitations on government actors set in place two and a half centuries ago.

The problem, I believe, with creating a new Digital Bill of Rights, is that it would inevitably be biased by the current mindset of American culture and politics. No matter how faithfully we might try to adhere to the values of the original document, it is impossible to remove ourselves completely from the political and cultural climate that surrounds us now. Rather than forming a new document based on current conceptions of liberty and freedom, it makes more sense to return, confident and determined, to the Bill of Rights as a living document. Despite the ideological leanings and value shifts of the American people and government, the text remains constant and will continue to provide a baseline, a neutral starting point, upon which all arguments (no matter how biased) must be based.

Lessig is certainly correct that “translation” has its limitations. As with any exercise in applying general guidelines to specific scenarios, the correct path is not always clear. Old case law will not always map perfectly onto new technology. But these are issues for the judiciary branch to grapple with. After all, who better to be charged with preserving the values of the Bill of Rights than those individuals who have dedicated their lives to the study of its application in new contexts? Some degree of faith in the Court is required. Statutes that allow for blatant governmental intrusion will be struck down, while the courts will continue to split over more nuanced issues, as they have always done. But the eventual movement will be towards a rule of law that balances the privacy of individuals with safety and national security interests. This has always been the case, and there is no reason to believe that it will change.

As for Lessig’s prediction that judges will take an increasingly deferential attitude towards the legislative and executive branches in the face of new technology, I see this as quite unlikely. In the past, the judiciary has aggressively faced technological revolution (indeed, changes in the “law of nature” as Lessig puts it), whether in Katz or Terry. To suggest that the judiciary branch will sit idly by while the mixture of technology and government slowly erodes the liberty of the American people seriously underestimates the power and will of judicial actors. For many years, the judiciary has served as an independent mediator between those advocating big government policies and libertarianism, all the while serving as the last line of defense for the rights guaranteed in the Constitution. No digital revolution will change the role or determination of the judiciary.

In one of the early weeks of this class, the Constitution was described as “puttering along,” struggling to keep up with a world that had moved hopelessly beyond its scope. But this could not be further from the truth. Not only does the Constitution remain relevant in arbitrating legal conflicts in the digital age, but really it is the only legitimate source for such guidance. The perpetual push and pull of liberal and conservative courts has not ceased in the face of new technology, but only intensified as the stakes for liberty and safety become higher than ever. In times of confusion, it may be tempting to cast aside “outdated” guidelines in favor of novel solutions, but the only answers continue to lie in a simple document at our fingertips.