The path of E-law: liberty, property, and democracy from the colonies to the Republic of Cyberia.

• Author: Schweiger, Barbara Spillman

INTRODUCTION

One century ago, Oliver Wendell Holmes, Jr., then an Associate Justice of the Supreme Judicial Court of Massachusetts, announced to the legal community that "[w]e are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds."(1) At the time Holmes penned those words, he was more than a half-century old and had witnessed the electrification of the American landscape; the explosive growth of the railroads; the advent of the communications age, in the form of telegraphy; the rise of the modern corporation;(2) and the closing of the American frontier.(3) In addition, during that time, a series of legislative enactments, judicial decisions, and Constitutional amendments radically transformed the concept of property in America and the legal fights which flowed therefrom.(4)

The philosophical reaction to which Holmes referred directly implicates those technological and structural developments that reweaved the entire fabric of the American political economy-from the way in which Americans secured their survival needs, to the way in which American society was organized. America was reacting, generally, to the rise of the modem business corporation, made possible by the development of faster forms of communication and transportation.(5)

Today, we are at the beginning of another philosophical reaction--a reaction spurred by the development of even faster forms of communication and "transportation" of commodified (and non-commodified) communications goods. America is reacting, generally, to the omnipresence of cyberspace,(6) made possible by the rise of new forms of electronic communication. Specifically, the Internet, now past its nascence, comprises the "backbone" of American academic, governmental, and economic information systems.(7) This note will examine the changing concept of property in both Justice Holmes's time and the present day and delineate how, as Holmes noted, the law must evolve to encompass more diverse forms of property as it relates to the other fundamental Constitutional guarantees of life and liberty in securing survival needs.

Part I of the note will examine the centrality of private property in the early American political economy and how the late-nineteenth-century legislative and judicial responses to American industrialism--particularly to corporate property ownership, electrification, railroads, and the telegraph--became increasingly out-dated and ineffective. It will further explore Holmes's recognition of the inadequacy of applying old forms of law to a revolutionary new political economy. As such, the note will examine Holmes's attack on natural rights theories of property and his insistence that property rights are human constructs that cannot be viewed outside the context of the political economy and culture that give rise to them.

Part II of the note will examine the development of governmental regulatory power in an increasingly complex political economy. As the laissez-faire economic theory, apparently chosen by early nineteenth-century American society, proved increasingly inadequate in ensuring that working citizens could secure their subsistence needs, scholars and legislatures began to look elsewhere for guidance in crafting policies governing commerce. This section will examine the legislative response to the great economic rifts which exposed the fallacy that the notion of self-adjusting, unregulated markets was based on a priori truths and the growing recognition that the market--and the law, for that matter--was socially, not scientifically, constructed. Finally, this section will focus on the regulation of the emerging commercial and communications infrastructure.

Part III will provide a broad overview of the legislative and judicial responses to the arrival of the information age, particularly to computer databases, the information superhighway, and electronic communications, and how Holmes's observations might be of assistance in initiating a necessary paradigm shift. If we accept the premise that our Founding Fathers placed a heavy emphasis on protecting private productive property because it ensured that citizens could meet their subsistence needs, then we need to re-examine what form this protection should take in the Age of the Internet. By examining various contemporary theories concerned with establishing a framework in which property rights in cyberspace might be situated, the article will point toward a reconsideration of doctrines by which laws are now applied in the new frontier of cyberspace, or the Republic of Cyberia.

1. THE REVOLUTIONARY YEOMAN MEETS NINETEENTH-CENTURY TECHNOLOGY AND THE CORPORATE RECONSTRUCTION OF AMERICAN CAPITALISM

   1. The Primacy of Private Property in American Political Dogma

      1. Real Property in a Property Paradigm

         In 1787, those who framed the Constitution of the United States (the "Framers") instituted a republican form of government whose "first object" was to protect not property per se, but "the faculties of men, from which the rights of property originate."(8) The Framers drew heavily from John Locke's theories of political economy which made land central to political foundation, but only as it was made productive by human agents. In his Second Treatise on Government, Locke wrote,

         [L]abour makes the far greatest part of the value of things we

         enjoy in this World: And the ground which produces the

         materials, is scarce to be reckon'd in as any, or at most, but a

         very small part of it .... 'Tis Labour then which puts the

         greatest part of Value upon Land, without which it would

         scarcely be worth any thing.(9)

         It was not merely the labor of the individual yeoman, nor the labor of his wife, children, servants, or slaves, but the labor of all who had a part in everything which touched the yeoman's life:

         '[T]is not barely the Plough-man's Pains, the Reapers's and

         Thresher's Toil, and the Bakers Sweat, is to be counted into the

         Bread we eat; the Labour of those who broke the Oxen, who

         digged and wrought the Iron and Stones, who felled and framed

         the Timber imployed [sic] about the Plough, Mill, Oven, or any

         other Utensils, which are a vast Number, requisite to [the] Corn,

         from its sowing to its being made Bread, must all be charged on

         the account of Labour, and received as an effect of that: Nature

         and the Earth furnished only the almost worthless Materials, as

         in themselves.(10)

         Property in the form of land, in Locke's formulation, was thus important, but it was not made vital until a large number of people worked upon it.(11) Republican ideology, which formed the basis of most American colonial and Revolutionary thought and which conceived of society in organic terms, viewed promotion of virtue and advancement of the common good as among the legitimate ends of government.(12)

         In the colonial period, governmental grants of land, either from the Crown or from colonial legislatures themselves, were largely conditioned on the grantee's making such property productive.(13) If a grantee failed to develop his property, ownership might be forfeited or transferred to another person.(14) Alternatively, the property could be "taken" by the colony for public purpose.(15) Distrust of the monopolization of property and wealth was based upon the notion that such concentrations might deny others the minimum property they needed to become participants in the polity.(16)

         In a less complex economy based on the productivity of private land, farmers and artisans ensured the acquisition of their survival needs of food, comfort, and reproduction through their direct labor, or the labor of their dependents (i.e., wives, children, slaves, and servants), on the soil or in nature's abundant natural resources. The opportunity to acquire land, and the right to use that land to meet survival needs, led courts and legislatures to establish land as the key determinant of selfhood.(17)

         When the Constitution was adopted, only white, land-owning men(18) could stake a claim to suffrage and, thus, to the legal benefits of citizenship; all others were arbitrarily barred from property ownership.(19) If one owned productive property, one established the necessary condition for rational self-determination, according to the classical republican political theories from which the Constitutional fathers had drawn their defense of the government they established.(20) Rationality, in this context, is merely an arbitrary condition and not a way of being and reasoning in the world.(21)

         Early American legislatures knew how vital it was to keep the opportunity to own land open to all who were "qualified" to own and develop it. James Madison recognized that "the most common and durable source of factions, has been the various and unequal distribution of property."(22) Specifically, Madison observed that the freeholder and the wage worker; the monied, mercantile, and landed interests; and the creditor and debtor were all driven by their own sentiments and views.(23) Regulating those various interests should form "the principle task of modem Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of Government."(24) Madison recognized that the "causes of factions cannot be removed,"(25) because it is precisely those causes or conditions that create the interest brought before government in demanding justice. The proper role of government, then, is to provide "relief" which might only be sought "in the means of controlling [the] effects [of unequal distribution of property]."(26)

         The legal creation of tracts of land was a federal policy that opened the Northwest Territories and ultimately settled the entire continent.(27) Thus, from the start, the federal government had been in the business of providing means of production of survival goods to its...