Lawrence Lessig: What's Next for American Democracy

America is an idea, but that idea is grounded in certain fundamental ideals. And the argument I want to make in the few minutes I have your attention here today is that we have lost focus on those ideals - core ideals, defining ideals, ideals that we have betrayed. Now these ideals are important, not because they're original, not because Madison said we should like them. These ideals are important because they are right. Some defining ideals we have rejected - and it’s a good thing too. Think about slavery. But these ideals we affirm, we continue to affirm. These ideals we celebrate. And yet, almost without noticing, these ideals we have also betrayed. So when I think what's next for democracy, I think we should reclaim these ideals. We should make them ours again. Because these ideals represent the very best of the American tradition. They could make us great, or at least, they would make us good. OK, first, the United States was born as a set of colonies. It took the subjects of those colonies hundreds of years to recognize just how awful a system colonialism was. And so, the very best gathered in Philadelphia to craft a declaration, really an argument against this king, King George, and against any king, really, because it was an argument, in effect, against colonies, an argument for a republic. Certain self-evident truths guided that argument. Certain slogans provided the sizzle: "No taxation without representation." But the more general principle underlying all of that work, was a principle of equal representation, that free societies secure to their people the right of self-government - at least the white male property owners, the right of self-government. This document was deeply anti-colonial, fundamentally Republican, and it was an inspiration around the world. Now, this ideal lasted in America for no more than about 100 years. It was overthrown after a century. And you can ask, how was it overthrown? Maybe Ernest Hemingway would say, "Gradually, and then suddenly ... in fits and starts before the torrent." So we first overthrew the monarchy in Hawaii, and the very next president, Grover Cleveland, reversed the decision, saying, “We are not a colonial nation.” But beginning in the 1890s, the United States exercised its power, including its military force, to overthrow governments across the world all the way up until the present time. So Hawaii and the Philippines and Cuba and Puerto Rico and Honduras, Nicaragua, Iran, Guatemala, Vietnam, Chile, Grenada, Panama, Afghanistan and most recently, Iraq, these are nations which felt our force - not our argument, not the persuasion of our principles, our force - and were exorcised in that force by a colonial imperialist will. Now, part of this was animated by racism. Rudyard Kipling described the white man's burden. And in that description in his poem, he presented an image of white men above everyone else, literally white men above everyone else. And it was practiced with a brutality that we still, to this day, do not fully recall. This war in the Philippines was among the most brutal in our history, openly using techniques of torture to force our will upon the Filipinos. One soldier, writing back to his family, wrote, "Our men have been relentless, have killed to exterminate men, women, children, prisoners and captives, active insurgents and suspected people from lads of ten up, the idea prevailing that the Filipino as such was little better than a dog." This imperialism grew into a certain peak just before the Second World War. In 1940, the United States was the fifth largest colonial power in the world. Thirteen percent of our population, that’s more than the African Americans in our nation, lived in the territories, not in the United States. But then after the war, there was a fundamental shift in our imperialist strategy. We focused no more on territories. Indeed, we did the unheard of. We gave up a colony, the Philippines. Instead, we became what we could call pointillist, as if the pointillists in the art world became foreign diplomats. Pointillist. And that pointillism shifted to exerting force through military bases. Now, this is a point, I think, many Americans are not fully aware of. If you look at the United States and our foreign bases as compared to the rest of the world - and in this graph, let's say every dot is going to represent 30 foreign bases - then the United States today has about 800 of these foreign bases, 800 bases located all around the world. The rest of the world has a different practice. If you take the rest of the world combined, the total number of foreign bases by all other countries added together is just 30. The United States has 800; the rest of the world, 30. So when we celebrate who we were, when we think of our anti-colonial past, in this we must recognize that we have changed. We have changed fundamentally. Now one virtue about this change, one virtue when we made this terrible choice to go down the line of imperialism rather than the ideal of republicanism, is that we did it democratically. In 1896 to 1900, we had the greatest debate in the United States about who the United States would become. There was a pro imperialist side and an anti-imperialist side, people like McKinley against William Jennings Bryan, Henry Cabot Lodge against Andrew Carnegie, Teddy Roosevelt against Mark Twain. We had a choice and we made that choice, but that choice was a betrayal of who we originally were. OK, second, James Otis is perhaps the most forgotten framer. Slogans like “Taxation without representation is tyranny” come from him, and that's still famous. But the really important work that Otis did was in arguing a case in 1761, called Paxton v. Gray, fifteen years before the Declaration of Independence. In this case, Otis fought the British Crown’s use of something called the “writs of assistance.” These were warrantless searches that the Crown thought it had the authority to engage to find evidence of criminality or violations of tax laws. Otis argued that this violated fundamental principles of free government. And this argument, John Adams said, was when the revolution began. As he wrote, "The child independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take up arms." Now, Otis lost that appeal, but America won because of his argument. When the Constitution was finally ratified and the Bill of Rights added to it, the Fourth Amendment expressly protected against unreasonable searches and seizures, and the requirement was that warrants, if they were to be issued, could be issued if and only if they were supported by probable cause, supported by an oath and affirmation, and particularly describing the place to be searched. Louis Brandeis looked at this tradition and said it defined the character of America that protected "the right to be let alone,” not always, but always when the government has no cause. These were their ideals. Now, these ideals were tested. When technology changed, they were tested. Roy Olmstead was a police officer in Seattle. He was also a bootlegger. He was called the gentleman bootlegger because he refused to use violence in engaging in his bootlegging activities. In March 1920, he was arrested, jailed, and the case against him was built on a new technology of wiretapping. The government connected wires to the telephone lines leading into his business and used the information on those wires to convict Roy Olmstead. Olmsted appealed the conviction, saying, "Hey, what about the Fourth Amendment?" And in the case Olmstead v. the United States, the Supreme Court looked at the Fourth Amendment and said that protecting unreasonable searches means to protect against trespasses that were unreasonable. But wiretapping involves no trespass, because the wires are connected, not inside the house where Roy Olmstead was living or working. They were attached to the wires outside the house. So as Chief Justice Taft put it, there was no violation of the Fourth Amendment and therefore wiretapping was completely legal. Louis Brandeis had a very different view. He thought the Constitution was to be adapted to a changing world, and his view, 40 years later, would become the view of the Supreme Court when the court reversed Olmstead. But the point is, during this time, there was not yet any strong constitutional limitation on these warrantless wiretapping searches. Yet even then, the searches were episodic, episodic and costly. They happened, but they happened rarely because it took effort to actually engage in the search. But then the technology changed again: first, the internet, which became wired into our life across the world and in the United States, and then the tragedy of 9/11, which triggered a ferocious desire to protect the nation in ways that would have been unimaginably conceived even five years before. Those two together produced the conditions described in Edward Snowden’s book Permanent Record. Because beginning in earnest after 9/11, the government engaged in building systems of perpetual surveillance of us, everywhere on digital technologies, massive technology to capture and store what we did or what we said, literally rooms set up to snoop on trunks of the internet to gather all the data that they could to begin to identify and make accessible to the government facts about even citizens, piecing together a picture of anyone they chose to view for the ends of assuring they were not engaged in terrorism or maybe even criminal activity. This is betrayal number two. But unlike betrayal number one, there was no democratic deliberation here. Indeed, Snowden sacrificed, risking his life and certainly his freedom he made, because there was no democratic deliberation here, and he believed if this principle was going to be betrayed, at least the nation should discuss it. But even though it's been challenged, it survives in effect to this day. We live in a world of persistent, not episodic, monitoring by the government to the end of stopping terror, but that end even itself cannot deny that this is a betrayal. OK, that's two. Here's three. If Otis was the forgotten framer, the Northwest Ordinance is the forgotten framing document, actually, documents - there are multiple ordinances. And what’s striking about these ordinances is the view of the New Republic that they reveal, certain ideals that were clear and fundamental. One ideal was the anti-slavery ideal, which was forbidden in the Northwest Territories after the ordinance went into effect. And another ideal was the anti-monopoly ideal. The second ordinance described carving up tracts of land in the Northwest Territory into 640-acre blocks, but then granting to families 160-acre segments, but only 160-acre segments - limiting those grants of one 160-acre segment to each family. Now that limitation turns out to be very common in our history. The Preemption Act of 1830 and 1841, the Homestead Act of 1862, the Southern Homestead Act of 1866, the Timber Culture Act, the Desert Land Act, the Reclamation Act of 1982, all of these carved up land in 160-acre lots and limited the number of lots that a single family could buy to just one. This betrayed a commitment, that some property is good, but small property is better, and that competition among property owners is essential, that we can never allow property to become too big, the owners to become too big, because if they could control a market, then they could potentially control the government. This was the anti-monopoly principle, not anti commerce - anti monopoly. And throughout our history, there has always been a fight, and it’s been a cross-partisan fight, to defend this principle. Teddy Roosevelt and William Howard Taft were Republicans who fought for this principle when they were presidents. Woodrow Wilson and FDR, in my view, much more effectively fought for this principle as Democrats when they were presidents. This fight on behalf of this principle continued through the administration of Ronald Reagan. And then there was the beginning of the end. Because then, the ideas of this man, Robert Bork, began to infect the law through the Department of Justice and the judges appointed by Ronald Reagan - infected the law and pulled back on the idea of fighting for the anti-monopoly principle. It's astonishing to recognize that the last major antitrust case in the technology industry was the Microsoft case begun in 1998. And 20 years later, after that case, Rip van Winkle would be astonished to wake and recognize that there are basically four companies that exercise fundamental massive control throughout our life over commerce and journalism and democracy. Their monopoly power is more everywhere. Now, one part of this betrayal is linked to the betrayal number two - the persistent and ubiquitous surveillance. This is the surveillance described by Shoshana Zuboff in her magisterial work as “surveillance capitalism." But the other part is betrayal number three, and this is inspired, in my view, by Zephyr Teachout. Zephyr in her book Break Them Up describes the “chickenization of everything.” Now, you might think of chickens and you might think of the happy creatures like this. She's not talking about those chickens but these chickens. And more importantly, she's not really talking about the chickens. She's talking about the person in the center, the farmer, who, as the industry has evolved, bears all the risk of the farm - takes out the loans, and if he can’t pay the loans, then goes into bankruptcy, but because of the structure of farming, exercises no control over how his or her chickens will be raised and has no alternatives about where to sell his or her chickens, because all the channels of distribution have been concentrated so there's only one channel in any locality. And as these channels begin to experiment with these different farmers, they are squeezed, squeezed all of their profit out by the people who exercise control over their business. This is chickenization. And it’s a metaphor for everything. It's a metaphor for the way we have betrayed a core and fundamental ideal of how market economies are supposed to work. Because it's not just for efficiency that we keep enterprises small; it's also for democracy. Because too big to fail means too big for the government to resist or too big for the government to regulate, meaning these businesses, these big businesses become alternative autocratic governments. Now, here too, like with betrayal two, there was no democratic authorization of this change. We never had an "end the antitrust" movement in America. It’s just endless money in our political process, in our Congress in particular, that has had the effect of corrupting the law. This is betrayal number three. (Choir singing America the Beautiful) We are a set of ideals. We are a nation grounded in those ideals. But at some point, we have to step back and ask, So who are we really? Because the anti-imperialist ideal of our founding is not the republic we are today, and the privacy respecting republic of our founding is not the republic we are today, and the power limiting small creator republic is not the republic that we are today. We are not who we said we would be. We are different. And I think we are less. Now, could we be more again? Could we imagine waging a fight to regain these ideals at the core of our republic? Of course we can. Obama would say, “Yes, we can," but I’ll just say, “Of course we can." Of course we can declare again the ideal of peace and bring home our troops and cut defense radically. A recent tweet showed this extraordinary technology being tested in the military to see whether the ships would survive or be stabilized during an explosion, and the tweet comment on top was: “My kid’s school can’t afford air conditioning.” Can we afford this system of defense? And we can certainly reclaim the value, the ideal of privacy. We could end the surveillance state, both of government and corporations, and we could reclaim the ideal of progress - enforcing the law of antitrust, breaking up the giants and enabling small and diverse creativity. We could affirm that these are our ideals again. But we should recognize it would be difficult to do so. Tulsi Gabbard, who ran for president in the Democratic primary, as a soldier and member of Congress fighting against perpetual war and the imperialist urge in America, was called by the very top of our Democratic Party a Russian spy. Edward Snowden, member of the intelligence community, feeling himself compelled to reveal to America exactly the betrayals our community had imposed upon us, was also referred to as a Russian spy. And Zephyr Teachout, who is, in my view, the most important thinker on the democratic left, has been referred to as a "communist" for her claim that we should break up the monopolies. America is foreign, or foreign is America, and we need to build the movement to resist this reality and to fight for something better. Now, this is a fight worth having right now. We need to take it up even if we can't win because every new idea takes time and every old idea takes even longer. Join us in this fight. Thank you.