Larry Lessig's insomnia last night led him to post a fiery post-game analysis of yesterday's terrible Supreme Court ruling, which cheated our public domain to protect copyright. He focuses on the fact that many of the Supremes have espoused the view that their role is to protect the Constitution from Congress's excesses, but that the Justices seem to be picking and choosing which parts of the Constitution matter.
One friend offered a reason in an email of condolence. Those 5, he said, save their activism for issues they think important. They apply their principle to causes they think important. Protecting states is a cause they think important. Protecting the public domain is not.
By what right? By what g.d. right? These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?
This sounds so amazingly naive, I know. But I have spent my career staring down the charge of naive, insisting on something more. Think the poster on the X-Files — "I want to believe" — but with the Supreme Court, not UFOs, in the background. Yet here I am, more than a decade into my job, just where most of my professors insisted I should have been more than a decade ago.
