the problems we face
I'VE ARGUED THAT THERE IS A CHOICE ABOUT HOW CYBERSPACE SHOULD BE, BUT THAT we're disabled from making that choice. We are disabled for three very different reasons. One is tied to the limits we place on courts, the second to the limits we have realized in legislatures, and the third to the limits in our thinking about code. If choice must be made, these limits mean we will not be making that choice. We are at a time when the most significant decisions about what this space will be must be made, yet we haven't the institutions, or practice, to make them.
In part 4, I describe these problems, and in chapter 16, I sketch three types of solutions to them. Neither part will be complete, but both should be suggestive. The problems that cyberspace reveals are not problems with cyberspace. They are real‐ space problems that cyberspace shows us we must now resolve.
There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential from the constitutional or legal culture in which it is enacted—to protect that culture against changes in the future. A transformative constitution (or amendment) does the opposite: it tries to change something essential in the constitutional or legal culture in which it is enacted—to make life different in the future, to remake some part of the culture. The symbol of the codifying regime is Ulysses tied to the mast; the symbol of the transformative is revolutionary France.
Our Constitution has both regimes within it. The Constitution of 1789—before the first ten amendments—was a transformative constitution. It "called into life" a new form of government and gave birth to a nation. 1 The Constitution of 1791— the Bill of Rights—was a codifying constitution. Against the background of the new constitution, it sought to entrench certain values against future change. 2 The Civil