Reading the Constitution in Cyberspace

Abstract

We might distinguish between two types of constitutional regimes, one codifying, the other transformative. A codifying constitutional regime aims at preserving something essential from the then-current constitutional or legal culture?to protect it against change in the future; a transformative constitutional regime aims at changing something essential in the then-current constitutional or legal culture to make it different in the future. The picture of the codifying regime is Ulysses tied to the mast; the picture of the transformative is revolutionary France. In our constitutional tradition, the Constitution of 1791 was a codifying constitution?the Bill of Rights, that is, was a constitutional regime that sought to entrench certain practices and values against change.1 The Civil War Amendments, on the other hand, were transformative, aiming to remake something of what the American social and legal culture had become, to tear out from the American soul its tradition of inequality, and replace it with a practice of equality.

JEL Classification: K19, L86