Science as Woman's Work

Arleen Forsheit was deep into the intricacies of stoichiometry with her accelerated chemistry class one morning in January when the subject abruptly turned to the president of Harvard. He had said something about how "innate differences" kept women from excelling like men in math and science. "If that's true," one girl asked Dr. Forsheit, "then what are we doing here anyway?" To which the teacher replied, "It's not true."

As a scientist, Dr. Forsheit knew that words, however reassuring, were not enough. A hypothesis needed evidence, an assertion required proof. And what offered more proof than the scene unfolding before her amid the graduated cylinders, gas spigots and molecule models of her own lab. Nearly a dozen ninth graders, every one female, were mastering the mathematics of chemical equations, otherwise known as stoichiometry.

No place in America, perhaps, supplied a more forceful rejoinder to conventional assumptions about women and science than Marlborough School, a private all-female institution for Grades 7 through 12 in Los Angeles. Ninety percent of its 263 upper-school students take more than the two full years of science required for graduation, filling no less than eight physics classes and populating a coveted seminar known as Honors Research. They have gone on to major in sciences at Stanford, U.C.L.A., Yale, Princeton, Johns Hopkins, and, yes, Harvard.

At the same time that Marlborough dashes the thesis of the Harvard president, Lawrence H. Summers, though, it also recognizes that the gender imbalance in the sciences that led to his comments has been real and cannot be wished away with paeans to diversity. In a conscious, deliberate way, Marlborough set about in the last decade to alter its century-old reputation as a stronghold of the arts and humanities - women's work, academically speaking.

"We wanted to establish the expectation that in all ways the bar is high and that our girls can achieve in all areas," said Barbara Wagner, the head of school at Marlborough, who was a music teacher.

Dr. Forsheit put it similarly: "We wanted science to have the same mind share as humanities. We wanted girls to take the extra year of science the way they were already taking the extra year of history or foreign language."

To the task, Marlborough brought the obvious advantages of a well-endowed independent school: small class sizes, lofty admissions standards, wealthy alumni. Still, the school's achievements in science also must be understood as the result of a different factor: There are no boys at Marlborough to dominate, distract or intimidate smart girls.

With a dress code strong on khaki, navy and pleats, Marlborough has also made itself an island apart from the relentlessly materialistic and pervasively sexual popular culture manufactured practically next door by Southern California's entertainment industry.

In the single-sex environment, girls can be girlish and at the same time be brilliant. They can giggle and tug on split ends and speak in those sing-song Valley Girl cadences, all the while discoursing on such personal specialties as cognitive psychology, phytoplankton, Parkinson's disease and mother-infant attachment among gibbons.

"It's assumed every girl will take math and science, not just the special ones," said Jessica Friedland, a 17-year-old senior from Los Angeles who will enter Stanford in the fall. "It's always surprising to people from other schools. You can see the shrugging of the shoulders, the rolling of the eyes. I say, 'Why not take Physics C?' I was never a good speller, anyway."

Having come of age two generations earlier, Dr. Forsheit experienced a fiercer sort of resistance. The sole daughter of a New York truck driver with an eighth-grade education, she was informed by him that she could only attend college if it was free. Fortunately, Brooklyn College met the criteria, and from there she advanced to a master's degree in biology from Columbia, a doctorate in molecular biology from U.C.L.A. and a post-doctoral fellowship from the California Institute of Technology.

Along with diplomas, she collected indignities. A Columbia professor once predicted that she would bomb in physical chemistry. (She got an A.) A brother-in-law said of her Cal Tech position, "You took a job that should've gone to a man." A lack of child care forced her to leave research in the 1970's to raise her two children, both daughters.

ULTIMATELY, she enrolled them in Marlborough, and found her way into a part-time faculty position. At that point, in 1989, only 10 girls in the entire school took physics. When Ms. Wagner was appointed head of school soon after, though, Dr. Forsheit gained a potent ally and advocate in building up the science program.

Out went the traditional "layer-cake" approach to middle-school science - separate yearlong courses in life, earth and physical science - and in came integrated courses that emphasized laboratory work over lectures. During the 1990's, Marlborough raised $7 million to expand and update its science rooms. The number of science faculty members went from 6 to 10, half of them women.

Most important, in the ineffable way of such things, the communal culture of the school changed. High-end science became, well, cool. That was clearest of all in Dr. Forsheit's honors seminar, which pairs about 10 juniors and seniors with an individual mentor from a hospital or research center to conduct research.

Often, the Marlborough girls are six or eight years younger than even the greenest graduate student in the lab. Yet some, like Stephanie Dusaban, have closed much of the knowledge gap over the past year. Her project developing stem cells at the Saban Research Institute in Los Angeles helped persuade Cornell University not only to admit her but also to offer her $8,000 for research - the sort of incentive generally dangled in front of doctoral candidates, not incoming freshmen.

Tomorrow night, Dr. Forsheit's elite students will present their final projects to classmates, faculty members and parents. At Marlborough, the ritual is "the academic equivalent of a debutante ball," as the author Karen Stabiner writes in her 2003 book about single-sex education, "All Girls" (Riverhead Books).

Which does not mean that all of the spectators can fully appreciate the spectacle. "My parents read all of my research papers," said Meryl Holt, a 17-year-old senior choosing between Stanford and Harvard. "And they always say afterward: 'You know, Meryl, that's so great, so well-written. I don't know what a word of it meant.' "

TV makes you smarter - and fat people live longer

"If watching TV really makes you smarter, as Steven Johnson argued in an article in yesterday's New York Times Magazine (an excerpt from his forthcoming book) then I guess I need to watch a lot more of it, because try as I might, I could make no sense of Johnson's piece. As far as I can tell, his thesis is that television shows have slowly grown more and more complicated over the last two decades (this paradigm shift apparently having begun with Hill Street Blues, the Gutenberg Bible of the smart-TV era), so that now, like rats in a behaviorist's maze, trained viewers can differentiate among up to 12 distinct plotlines in shows like The Sopranos. (The technical term for this great leap forward in human cognition: "multi-threading.") In other words, if I understand correctly, watching TV teaches you to watch more TV—a truth already grasped by the makers of children's programming like Teletubbies, which is essentially a tutorial instructing toddlers in the basics of vegging out."

I'm still waiting for someone to bust the ridiculously self-serving "fat people live longer" meme going around...

Information Overload

Knowing When to Log Off

Wired campuses may be causing 'information overload'

By JEFFREY R. YOUNG

David M. Levy, a computer scientist who loves technology and gets more than 100 e-mail messages a day, makes a point of unplugging from the Internet one day each week to clear his head. Even so, with all the e-mail messages flooding in, with academic blogs bursting with continuous debate, and with the hectic pace set by an increasingly wired world, Mr. Levy says he cannot help but feel an occasional sense of information overload.

And that, he says, is something to stop and think about.

Mr. Levy, a professor at the University of Washington's Information School, is one of many scholars trying to raise awareness of the negative impact of communication technologies on people's lives and work. They say the quality of research and teaching at colleges is at risk unless scholars develop strategies for better managing information, and for making time for extensive reading and contemplation.

"We're losing touch with the contemplative roots of scholarship, the reflective dimension," says Mr. Levy. "When you think that universities are meant to be in effect the think tanks for the culture, or at least one of the major forms of thinking, that strikes me as a very serious concern."

At Washington, Mr. Levy is working to create a laboratory to explore those issues, to be called the Center for Information and the Quality of Life. He received a $25,000 grant from the John D. and Catherine T. MacArthur Foundation to help plan the center, though he is still looking for support for its operation.

He and other scholars have already started a dialogue on the topic. Last year Mr. Levy organized a conference at the university called "Information, Silence, and Sanctuary" that brought together artists, philosophers, sociologists, and others, and was supported by the university and by grants from MacArthur and the National Science Foundation.

Mr. Levy hopes the conversations will grow into a new kind of movement focused on people's informational environments and on reducing data smog.

Scholars are beginning to realize "that our information ecology is endangered as well," says Mr. Levy. "We're just at the very beginning of even being clear about the nature of what the problems are."

'Not Anti-E-Mail'

Colleges were early in embracing the Internet and other communication technologies, and campuses remain some of the most wired environments anywhere. Although many professors say the Internet has enhanced their teaching and scholarship -- by better connecting them with colleagues around the world, by providing easier access to research materials, and by increasing contact with students -- it has also brought new challenges, such as keeping online tasks from becoming unwieldy.

"When I sit down at a conference or lunch with a colleague, there's a pretty good chance we'll talk about being overwhelmed by e-mail and what we're doing about it," says Buzz Alexander, an English professor at the University of Michigan at Ann Arbor. "I'm not anti-e-mail. I'm advantaged and disadvantaged by e-mail like everybody else."

On the syllabus for his course "What Is Literature?" he tells students not to contact him by e-mail. He says he tries to make sure he is available for one-on-one meetings to respond to any questions -- after class, during his office hours, or over coffee. "If they're in my office," he says, "I can say to them, 'How are you liking the course?' or 'How are things going?'" And he worries that he would not be able to keep up with a flood of e-mail questions from students who expect an instant response.

Bill McKibben, a scholar in residence in environmental studies at Middlebury College, says the issue is more than just one of time management.

"There's the real danger that one is absorbing and responding to bursts of information, rather than having time to think," says Mr. McKibben, author of Enough: Staying Human in an Engineered Age (Times Books, 2003). "What's only gradually becoming clear is not just a pragmatic drawback but an intellectual drawback to having so many trees that there's no possibility of seeing the forest."

He says he is not immune from feelings of information overload, and that he has tried to work out strategies for dealing with the flood of communication he gets each day. When he is working on a book or is near a deadline, for instance, he only checks his e-mail messages once a day, in the evening. And he uses a slow dial-up connection at home, even though he could afford a faster broadband service, so that he is less tempted to surf the Web.

"I think part of it is that my mind, and perhaps human minds in general, are geared toward novelty, and so it's difficult to discipline yourself to disregard each new incoming e-mail and each new incoming thing that you can instantly track down and print out," he says.

Some scholars worry that even tools meant to help home in on specific information could have a negative impact on research.

For instance, Michael Gorman, president-elect of the American Library Association and dean of library services at California State University at Fresno, wants to make sure students and professors do not become so enthralled with Google, which plans to scan millions of books and add them to its popular search engine, that they stop reading books the old-fashioned way.

"We all know that, in Googleworld, speed is of the essence, but it is not to most scholarly research in the real world," Mr. Gorman wrote in a recent editorial in the Los Angeles Times. "Massive databases of digitized whole books, especially scholarly books, are expensive exercises in futility based on the staggering notion that, for the first time in history, one form of communication (electronic) will supplant and obliterate all previous forms."

In an interview, Mr. Gorman stressed that he is not against technology, and that he is a strong supporter of digital-library projects for special collections and rare materials. "I'm all in favor of technology being used wisely," he said. "My basic point is the best thing to do with a scholarly book is to sit and read it," rather than skim an excerpt that is revealed by a search engine. "A book is not just an accumulation of facts, it's an argument, a cumulative piece of knowledge, and is designed to be read sequentially."

Stopping to Think

Since students are generally even more wired than professors, some college officials think students should be encouraged to take some time away from computers, cellphones, and other communication devices.

"The amount of information that goes into a young person's head today is incredible," says David H. Landers, director of the student resource center at Saint Michael's College, in Colchester, Vt. His main concern is that students have replaced face-to-face contact with instant messaging and e-mail. "They're not going to have the same quality of interpersonal relations that will help them in a work environment," he argues.

He says colleges should encourage students to get involved in community projects where they see what life is like outside of their high-tech campus bubble. "We recognize technology," he says, "but we can't become slaves to it."

David Rothenberg, a professor of philosophy at the New Jersey Institute of Technology, took a novel approach to fighting overload in a class he taught called "Technology and Contemplation." He used a few minutes of each class session to have students meditate.

"If you stop talking and have people sit silently for five minutes, that's a good use of time because people are so stressed out," he says. "It really had a positive effect." He says he is no expert on meditation, and that the bulk of the class dealt with texts that looked at the differences and similarities between technical thinking and contemplative thinking. He tried the techniques with the support of a small grant from the Center for Contemplative Mind in Society, a secular nonprofit group.

Mr. Levy says his weekly day off from technology is part of his observation of the Jewish Sabbath (his wife is a rabbi), but that he recommends time away from computer monitors as a practice in itself. "I'm not suggesting that anyone else be Jewish," he says, "but rather if you think about the idea of the Sabbath, which is a time apart, a time to cultivate different qualities, that seems like a very important idea for our culture."

He says information overload is one aspect of a larger problem that includes "fragmented attention, busyness, and the speed-up of daily life."

"It isn't just the amount of information," he argues. "It's the expectation that we're going to go faster and faster and faster."

Arthur G. Zajonc, a physics professor at Amherst College who is also director of the academic program for the Center for Contemplative Mind in Society, says many people take pride in replying to e-mail messages instantly, leading them to dash off terse, often uncivil, responses. He says he makes it a point to pause and rethink his outgoing e-mail messages for 30 seconds before sending them, to make sure he hasn't been overly curt. "Everything is so fast and also a little bit anonymous" with e-mail, he says. "So you have to pause to reflect on who this person is" that will be reading the message and how they might perceive it.

Broader Issues

Academics are not the only ones feeling overwhelmed, of course, and a growing number of researchers are looking at technology's impacts on the quality of life outside of colleges.

Norman H. Nie, director of the Stanford Institute for the Quantitative Study of Society, at Stanford University, found in a recent survey that Internet use tends to cut into family time, and can lead to feelings of isolation. For the average respondent, an hour on the Internet reduced face-to-face time with family by 23.5 minutes per day, he says.

"It's not whether to use the Internet or not use the Internet," said Mr. Nie in an interview. "It's how much time we really spend on it. Time is a hydraulic system. If you spend two hours doing one thing, you can't spend it doing something else."

Mr. Nie admits to a fair amount of Internet use himself, and says he feels it has changed his habits, perhaps cutting into some leisure time.

Eric Brende became so fed up with technology that he quit his graduate studies at the Massachusetts Institute of Technology a few years ago to spend 18 months living with his wife in a rural farming community. (He wouldn't say where exactly to protect the identities of the people he wrote about.) He argues that the negative aspects of using technology have become so great that we would all be better off giving up nearly all modern devices -- including washing machines, lawn mowers, and cars. He published a book about his experiences and beliefs, called Better Off: Flipping the Switch on Technology (HarperCollins, 2004).

He argues that living more simply actually yields more leisure time, and forces people to forge greater bonds with neighbors because of a greater need for cooperation (such as for the occasional barn raising). And he notes that not enough people are looking critically at the impact of technology. "Whatever impact it's having," he says, "people are overlooking the negative aspects of it, one of which is, I think, a loss of a sense of leisure and contemplation."

Mr. Brende, who now lives in St. Louis, has not completely switched off technology, though. He said in an interview that he occasionally checks e-mail messages at a nearby public library, and that he even has a cellphone, which helps him coordinate his work as a part-time bicycle-rickshaw driver. "You're not being disloyal to progress," he said, "by picking and choosing the kind of technology that best fits your needs."

Where Is Liberal Passion?

The day after the presidential inauguration, a coalition of progressives carried a 70-foot replica of a human backbone to the headquarters of the Democratic National Committee in Washington. Their point was well taken. The self-appointed party of the American left could learn from the opposition: Be more upright, less spineless.

Yet you might think that the backbone metaphor begs a question. You can't find the courage of your convictions if you lack real conviction in the first place. And as a group, blue-staters have been accused by friendly and not-so-friendly critics alike of being less than red-hot. They typically prize reason and deliberation; they are not gung-ho. They don't shout "bring it on"; they are suspicious of the blind emotion of tent revivals and military parades. They encourage thinking things through, getting a second opinion, and acknowledging the possibility that one can always be wrong. And that, some liberals worry, is just the problem.

The issue is consuming not just Democratic Party strategists. Political theorists, too, have begun a major rethinking of liberal theory. Take a look at this year's book catalogs, and you'll see the "L" word in numerous titles. Like as not, it's accompanied by words like "passion," "purpose," or "vision."

In different ways, liberals are asking: Could the very values they hold dear rob them of the requisite fire in the belly that conservatives, particularly social conservatives, seemingly have in abundance? Most liberals believe in equality of opportunity and resources, freedom for individuals to pursue their own vision of life, and tolerance toward those whose vision of the world is different from their own. Some of them, however, complain that in their eagerness to venerate their ideals, they too often undercut their ability to be politically effective. To put it in a nakedly partisan way, some liberals worry that Yeats was right: "The best lack all conviction, while the worst/Are full of passionate intensity."

No one wrestles with that dilemma more than Michael Walzer. In his intriguing and intelligent Politics and Passion: Toward a More Egalitarian Liberalism (Yale University Press, 2005), Walzer takes Yeats's warning as his touchstone as he presses his point from the left. Standard liberalism, he writes, is "an inadequate theory and a disabled political practice." It is inadequate, in part, because its values are not conducive to real conviction. It is disabled "because the social structures and political orders that sustain inequality cannot be actively opposed without a passionate intensity that liberals do not (for good reasons) want to acknowledge or accommodate."

As one of the most distinguished advocates of the communitarian critique of liberal theory, Walzer thinks that liberalism has a problem with passion because it ignores the politics of community. A typical picture of a liberal society is one formed on the basis of a rational contract, where social arrangements are made from the standpoint of enlightened self-interest. That, communitarians like Walzer point out, overlooks the fact that human beings' primary sources of value emerge from the communities to which we belong. Moreover, even in the shifting whirl of mobile Western economies, we don't choose most of our communities -- our family, our ethnicity, our religion; we get them handed to us.

By overlooking those facts, standard liberalism not only overplays the role of reason and autonomy in our lives, Walzer thinks, but also ends up being less egalitarian. If an individual's passions and values are formed in a community, then it is not just individuals who deserve equal respect and opportunity, but the communities themselves. Only by providing such respect -- and in some cases, actual financial support -- to traditional communities can we hope to encourage their members to fully participate in liberal civil society. In short, if it takes a village to raise a tolerant liberal citizen, then villages, not just villagers, deserve the support and the protection of the state.

Lefty communitarians are not alone in making that critique of liberalism. Social conservatives have long argued that progressive liberals, in trumpeting individual rights, ignore traditional communities as a source of value. That, after all, is the reasoning behind the president's faith-based social-services initiatives. The thought is that by supporting programs run by churches and synagogues, which are by nature embedded in communities, the community itself is better supported.

Maybe so. But as the neocons are well aware, traditional family values frequently clash with liberal values. That is not a problem for social conservatives, who often argue, for example, that we should ban same-sex marriage on the basis that it offends traditional morality. But it does present a problem for liberal communitarians like Walzer. Some traditional communities are rife with intolerant oppression -- precisely the sort of thing that enlightenment liberalism is presumably meant to combat. Surely liberals needn't tolerate intolerance.

Walzer valiantly attempts to deal with that concern. But in the end, his principle argument is resistible. Consider a hypothetical local religious community that does not value equal education for boys and girls. According to Walzer, if we are to compel our traditional community to educate its girls, we shouldn't appeal to individual rights; we should appeal to the pragmatic demands of citizenship. If a community wishes to participate in an egalitarian state, it must ensure that its members can be full citizens; among other things, that means that all of its children must read and write.

That argument makes sense as far as it goes. The question is whether it goes far enough. For one thing, it is not clear that the "pragmatic" demands of citizenship -- such as voting -- do absolutely require education, even if they are inestimably enriched by it. But even putting that aside, there are surely harms that an intolerant community can bring upon its members that are independent of the demands of citizenship. Even if we grant that citizenship requires equal literacy for the sexes, it doesn't obviously require that the sexes (or races, or ethnicities) be given equal opportunity to all levels of education -- or that communities recognize same-sex marriages, or that children be taught the theory of evolution instead of creationism. Those sorts of requirements only make sense when one sees the state -- as the liberal does -- as being in the job of ensuring that its citizens are free from explicit harms suffered when a community forces its values upon them. That doesn't deny that our values are shaped by our communities. It just rejects that such values are justified by their origin.

In my view, the reason that liberals are sometimes perceived as passionless isn't because liberal values are in need of a communitarian correction. The reason is that some liberals misunderstand, and therefore misrepresent, their own values. In particular, they misunderstand their values in a way that has made them wary of describing their own moral position as true. And that is bad. For once you cease thinking of your values -- your fundamental moral beliefs -- as objectively true, it is hard to even think of them as values at all. And without political values, there simply is no place for political passion.

Two important liberal values, for example, are equality and tolerance. Liberals believe the state should treat its citizens with equal respect and therefore that the state -- and the individual citizens within that state -- should tolerate, as much as possible, a wide range of different ways of life. It is largely that emphasis on tolerance that sets liberals apart from social conservatives. Social conservatives believe that treating people with respect means treating them as they should be treated given the one true way people ought to live. If that is the Christian way, for example, then treating people with respect means treating them as equally subject to the values inherent in Christianity.

That point was most recently echoed in conservative commentaries on the Terri Schiavo case, but it emerged even more explicitly in the Rev. Bob Jones III's now-infamous open postelection letter to President Bush. As Jones wrote, "In your re-election, God has graciously granted America -- though she doesn't deserve it -- a reprieve from the agenda of paganism. You have been given a mandate. We the people expect your voice to be like the clear and certain sound of a trumpet." The letter went on to urge the president to pass "legislation that is defined by biblical norm(s)," "to appoint many conservative judges," and "to leave an imprint for righteousness upon this nation that brings with it the blessings of Almighty God."

In recoiling from that position, some left-leaning thinkers have argued that liberals need to adopt what the philosopher Richard Rorty calls an "ironic" attitude toward our own liberal principles. If we want to be truly tolerant, the thought goes, we need to stop seeing liberal views about equality and tolerance as objective moral truths. Instead, we should see them as morally neutral. Otherwise, we risk being intolerant about tolerance.

Tempting as it may sound to some, that line of reasoning is a mistake. It undermines liberalism's ability to galvanize passionate intensity. That is most obvious when liberal tolerance is defended, as it sometimes is in the popular news media, on the basis of naïve relativism: If different ways of life deserve equal respect, then all ways of life are equally good. The just state must remain neutral with regard to questions of how to live because there are no objectively true or false answers to such questions. So we should live and let live.

But relativistic liberalism is clearly a rational and political failure. It is a rational failure because its key inference is invalid. From the fact that many different forms of life deserve equal respect, it doesn't follow that we can't criticize some as being worse than others. It is a political failure because if every way of life is as good as any other, then what motivation does the liberal have for opposing the conservative's and trumpeting his or her own? It is hard to stand up and fight for a view that sees itself as no better than the opposition's. Passion has no foothold.

Bloodlessness is also the result of more philosophically sophisticated attempts to understand liberalism as morally neutral. The preeminent architect of contemporary American liberal thought, the late John Rawls, argued over the last decade and a half that tolerance demands that liberalism should be understood as a "political, not metaphysical" doctrine. That is, we should not defend liberal principles, such as the principle of tolerance itself, by asserting that they represent fundamental moral truths. Rather, Rawls said, in defending those principles and whatever follows from them -- for instance, a right to abortion, the constitutionality of same-sex marriage, etc. -- the liberal must appeal only to the uncontroversial popular consensus -- that is, "public reasons" that every reasonable person implicitly accepts. In short, since the liberal state must remain neutral among different conceptions of morality, liberal principles must themselves be justified in a way that is morally neutral and that all reasonable points of view can accept.

Rawls's position was complex, and he was certainly no relativist. But his understanding of tolerance was motivated by a related desire: to make liberal values somehow "float free" from any particular moral outlook. And that is troubling, for at least two reasons. The most obvious problem is that the idea that liberal principles are neutral among all "reasonable" points of view only makes sense if "reasonable" is defined in a distinctively liberal way. The less obvious problem is that were I to believe that my foundational liberal principles were already held by all reasonable people -- whether they know it or not -- it is difficult to see why I should bother to vigorously defend my principles. The battle, in effect, would already be won, so there would be little point in getting worked up about it. Again, passion drains away.

If we want to rediscover an intellectual foundation for liberal passion, then we need to forget about the beige of moral neutrality and favor the red of moral conviction. We need to remember that moral convictions are just that, beliefs that some political ideals are objectively better for society than others.

It is also worth remembering that lots of Americans already view liberals as full of passionate conviction. Take last fall's fight over gay marriage. Eleven states, it turned out, passed bans against same-sex marriage. Liberals -- rightly in my view -- protest that such bans treat citizens unequally and privilege one way of life over others. But to many, it is liberals who are pushing their values into other folks' faces. In the endearing language of talk radio, conservatives across the nation rally to prevent "activist liberal judges" from "imposing liberal values" and "special rights." In short, far from seeing liberalism as value-neutral -- Rawls's "political, not metaphysical" account of fair play -- those on the right see liberalism as a rival comprehensive morality, a rival way of life.

Conservatives are right about that. And there is no need for liberals to apologize for it. As philosophers like Joseph Raz have argued, liberalism isn't value-neutral, nor should it be. Liberal values like tolerance and equality are just that -- liberal values, neither merely "true for us" nor ethically inert. Rather, they are part of a particularly liberal ideal of the good life -- an abstract ideal but an ideal nonetheless. The progressive liberal believes that other things being equal, the state should respect our individual rights and tolerate different ways of living that don't violate others' rights. That means that progressive liberalism is not neutral among all ways of life. The progressive liberal is committed to opposing ways of life that value racial and sexual discrimination or collapse the separation between church and state. The progressive liberal believes that societies that sanction torture, or are intolerant toward gays, or allow their citizens to be economically exploited are, in those respects, worse societies.

As much as possible, liberals need to argue for their case, as Rawls has emphasized, by appealing to reasons shared by all. But they cannot assume that all of their liberal values will be so shared, even if some are. And that is not surprising -- democratic politics, after all, is aimed at getting others to see things your way. So, much as social conservatives do, we liberals need to stand up for our values and persuade others to share them. And we must do so by defending our theory in the way that one defends any theory: by arguing for its worth on its own terms and for the beneficial consequences it brings.

But what of passion? Walzer rightly claims that standard liberal theory has too often ignored the role involuntary associations like family, race, and religion play in shaping our identities and stirring our blood. But we wouldn't share emotional bonds with other group members if we didn't also share values. I've argued that liberals do share a set of values, and that passionate commitment to them -- including the values of equality and tolerance -- requires seeing them as objectively worth defending. But it is also worth remembering that values are not just crystalline principles, sparkling under the light of reason. To talk about my values is to talk about what I care about, what I admire, what I aim for, and what I want others to aim for as well: tolerance for a wide array of lifestyles, compassion for those less fortunate than we, and the moral courage to stand up for our rights and the rights of others. So far from being a cold theory of rational neutrality, progressive liberalism is a theory of value -- and theories of value are theories of what we care about.

Liberals favor reason and evenhandedness; they are tolerant; they believe in autonomy, individual rights, and equality. But they can and should be fervent in defending the truth of those ideals. Liberals have no inherent problem with passion. They just need to remember to keep passion alive, and not to waiver in the face of spirited opposition. They just need to remember their backbone.

Michael P. Lynch is an associate professor of philosophy at the University of Connecticut and author of True to Life: Why Truth Matters (MIT Press, 2004).

The Bulldog Pope

"It logically follows from the consequences of a sexuality which is no longer linked to motherhood and to procreation," he said, "that every form of sexuality is equivalent and therefore of equal worth." It is only logical, then, that self-gratification becomes the point of sex. And it follows that all forms of sex - including homosexual - become equal and considered "rights."

Sounds pretty good for our new Pope...

He meant it as a criticism.

In a book-length interview published in 1985 titled "The Ratzinger Report," he used a rigorously argued line of reasoning to support a doctrinal position that reverberates outside the church. He condemned abortion, contraception, homosexual relations, sex without marriage, "radical feminism" and transsexuality. The wrongness of those ideas all arise from the separation of sexuality from motherhood and marriage, he said.

Liberation theology of the 1980's, in which leftist clerics in Latin America argued for radical change in society to help the poor, was quashed. Bishops were chastised for straying, like Archbishop Raymond G. Hunthausen of Seattle over his tolerant views on homosexuals. More than a dozen theologians, priests and bishops were punished for doctrinal error, and presumably, many other cases have not come to light. In 2000, he published a condemnation of the concept that other religions might be as valid as Catholicism.

Cardinal Ratzinger never displayed the same degree of interest in reconciling East and West in what John Paul II loved to describe as the "two lungs of Christianity." Mostly he was busy stamping out wisps of religious pluralism, most famously in 2000, when he published "Dominus Iesus" ("The Lord Jesus") , which condemned "relativistic theories" of religious pluralism and described other faiths as "gravely deficient."

The document was mostly aimed at reining in straying Catholic theologians like the Rev. Jacques Dupuis, a Belgian theologian who after teaching in India argued that other religions could also lead to salvation, but it offended religious leaders of almost every stripe. Jewish religious leaders in Rome boycotted several interfaith meetings in protest. Even some cardinals publicly questioned its tone and timing.

Passing the Buck on Health Care

Passing the Buck

By PAUL KRUGMAN

The United States spends far more on health care than other advanced countries. Yet we don't appear to receive more medical services. And we have lower life-expectancy and higher infant-mortality rates than countries that spend less than half as much per person. How do we do it?

An important part of the answer is that much of our health care spending is devoted to passing the buck: trying to get someone else to pay the bills.

According to the World Health Organization, in the United States administrative expenses eat up about 15 percent of the money paid in premiums to private health insurance companies, but only 4 percent of the budgets of public insurance programs, which consist mainly of Medicare and Medicaid. The numbers for both public and private insurance are similar in other countries - but because we rely much more heavily than anyone else on private insurance, our total administrative costs are much higher.

According to the health organization, the higher costs of private insurers are "mainly due to the extensive bureaucracy required to assess risk, rate premiums, design benefit packages and review, pay or refuse claims." Public insurance plans have far less bureaucracy because they don't try to screen out high-risk clients or charge them higher fees.

And the costs directly incurred by insurers are only half the story. Doctors "must hire office personnel just to deal with the insurance companies," Dr. Atul Gawande, a practicing physician, wrote in The New Yorker. "A well-run office can get the insurer's rejection rate down from 30 percent to, say, 15 percent. That's how a doctor makes money. ... It's a war with insurance, every step of the way."

Isn't competition supposed to make the private sector more efficient than the public sector? Well, as the World Health Organization put it in a discussion of Western Europe, private insurers generally don't compete by delivering care at lower cost. Instead, they "compete on the basis of risk selection" - that is, by turning away people who are likely to have high medical bills and by refusing or delaying any payment they can.

Yet the cost of providing medical care to those denied private insurance doesn't go away. If individuals are poor, or if medical expenses impoverish them, they are covered by Medicaid. Otherwise, they pay out of pocket or rely on the charity of public hospitals.

So we've created a vast and hugely expensive insurance bureaucracy that accomplishes nothing. The resources spent by private insurers don't reduce overall costs; they simply shift those costs to other people and institutions. It's perverse but true that this system, which insures only 85 percent of the population, costs much more than we would pay for a system that covered everyone.

And the costs go beyond wasted money.

First, in the U.S. system, medical costs act as a tax on employment. For example, General Motors is losing money on every car it makes because of the burden of health care costs. As a result, it may be forced to lay off thousands of workers, or may even go out of business. Yet the insurance premiums saved by firing workers are no saving at all to society as a whole: somebody still ends up paying the bills.

Second, Americans without insurance eventually receive medical care - but the operative word is "eventually." According to Kaiser Family Foundation data, the uninsured are about three times as likely as the insured to postpone seeking care, fail to get needed care, leave prescriptions unfilled or skip recommended treatment. And many end up disabled - or die - because of these delays.

Think about how crazy all of this is. At a rough guess, between two million and three million Americans are employed by insurers and health care providers not to deliver health care, but to pass the buck for that care to someone else. And the result of all their exertions is to make the nation poorer and sicker.

Why do we put up with such an expensive, counterproductive health care system? Vested interests play an important role. But we also suffer from ideological blinders: decades of indoctrination in the virtues of market competition and the evils of big government have left many Americans unable to comprehend the idea that sometimes competition is the problem, not the solution.

"The best lack all conviction, while the worst are full of passionate intensity" -Yeats

Where Is Liberal Passion?

By MICHAEL P. LYNCH

The day after the presidential inauguration, a coalition of progressives carried a 70-foot replica of a human backbone to the headquarters of the Democratic National Committee in Washington. Their point was well taken. The self-appointed party of the American left could learn from the opposition: Be more upright, less spineless.

Yet you might think that the backbone metaphor begs a question. You can't find the courage of your convictions if you lack real conviction in the first place. And as a group, blue-staters have been accused by friendly and not-so-friendly critics alike of being less than red-hot. They typically prize reason and deliberation; they are not gung-ho. They don't shout "bring it on"; they are suspicious of the blind emotion of tent revivals and military parades. They encourage thinking things through, getting a second opinion, and acknowledging the possibility that one can always be wrong. And that, some liberals worry, is just the problem.

The issue is consuming not just Democratic Party strategists. Political theorists, too, have begun a major rethinking of liberal theory. Take a look at this year's book catalogs, and you'll see the "L" word in numerous titles. Like as not, it's accompanied by words like "passion," "purpose," or "vision."

In different ways, liberals are asking: Could the very values they hold dear rob them of the requisite fire in the belly that conservatives, particularly social conservatives, seemingly have in abundance? Most liberals believe in equality of opportunity and resources, freedom for individuals to pursue their own vision of life, and tolerance toward those whose vision of the world is different from their own. Some of them, however, complain that in their eagerness to venerate their ideals, they too often undercut their ability to be politically effective. To put it in a nakedly partisan way, some liberals worry that Yeats was right: "The best lack all conviction, while the worst/Are full of passionate intensity."

No one wrestles with that dilemma more than Michael Walzer. In his intriguing and intelligent Politics and Passion: Toward a More Egalitarian Liberalism (Yale University Press, 2005), Walzer takes Yeats's warning as his touchstone as he presses his point from the left. Standard liberalism, he writes, is "an inadequate theory and a disabled political practice." It is inadequate, in part, because its values are not conducive to real conviction. It is disabled "because the social structures and political orders that sustain inequality cannot be actively opposed without a passionate intensity that liberals do not (for good reasons) want to acknowledge or accommodate."

As one of the most distinguished advocates of the communitarian critique of liberal theory, Walzer thinks that liberalism has a problem with passion because it ignores the politics of community. A typical picture of a liberal society is one formed on the basis of a rational contract, where social arrangements are made from the standpoint of enlightened self-interest. That, communitarians like Walzer point out, overlooks the fact that human beings' primary sources of value emerge from the communities to which we belong. Moreover, even in the shifting whirl of mobile Western economies, we don't choose most of our communities -- our family, our ethnicity, our religion; we get them handed to us.

By overlooking those facts, standard liberalism not only overplays the role of reason and autonomy in our lives, Walzer thinks, but also ends up being less egalitarian. If an individual's passions and values are formed in a community, then it is not just individuals who deserve equal respect and opportunity, but the communities themselves. Only by providing such respect -- and in some cases, actual financial support -- to traditional communities can we hope to encourage their members to fully participate in liberal civil society. In short, if it takes a village to raise a tolerant liberal citizen, then villages, not just villagers, deserve the support and the protection of the state.

Lefty communitarians are not alone in making that critique of liberalism. Social conservatives have long argued that progressive liberals, in trumpeting individual rights, ignore traditional communities as a source of value. That, after all, is the reasoning behind the president's faith-based social-services initiatives. The thought is that by supporting programs run by churches and synagogues, which are by nature embedded in communities, the community itself is better supported.

Maybe so. But as the neocons are well aware, traditional family values frequently clash with liberal values. That is not a problem for social conservatives, who often argue, for example, that we should ban same-sex marriage on the basis that it offends traditional morality. But it does present a problem for liberal communitarians like Walzer. Some traditional communities are rife with intolerant oppression -- precisely the sort of thing that enlightenment liberalism is presumably meant to combat. Surely liberals needn't tolerate intolerance.

Walzer valiantly attempts to deal with that concern. But in the end, his principle argument is resistible. Consider a hypothetical local religious community that does not value equal education for boys and girls. According to Walzer, if we are to compel our traditional community to educate its girls, we shouldn't appeal to individual rights; we should appeal to the pragmatic demands of citizenship. If a community wishes to participate in an egalitarian state, it must ensure that its members can be full citizens; among other things, that means that all of its children must read and write.

That argument makes sense as far as it goes. The question is whether it goes far enough. For one thing, it is not clear that the "pragmatic" demands of citizenship -- such as voting -- do absolutely require education, even if they are inestimably enriched by it. But even putting that aside, there are surely harms that an intolerant community can bring upon its members that are independent of the demands of citizenship. Even if we grant that citizenship requires equal literacy for the sexes, it doesn't obviously require that the sexes (or races, or ethnicities) be given equal opportunity to all levels of education -- or that communities recognize same-sex marriages, or that children be taught the theory of evolution instead of creationism. Those sorts of requirements only make sense when one sees the state -- as the liberal does -- as being in the job of ensuring that its citizens are free from explicit harms suffered when a community forces its values upon them. That doesn't deny that our values are shaped by our communities. It just rejects that such values are justified by their origin.

In my view, the reason that liberals are sometimes perceived as passionless isn't because liberal values are in need of a communitarian correction. The reason is that some liberals misunderstand, and therefore misrepresent, their own values. In particular, they misunderstand their values in a way that has made them wary of describing their own moral position as true. And that is bad. For once you cease thinking of your values -- your fundamental moral beliefs -- as objectively true, it is hard to even think of them as values at all. And without political values, there simply is no place for political passion.

Two important liberal values, for example, are equality and tolerance. Liberals believe the state should treat its citizens with equal respect and therefore that the state -- and the individual citizens within that state -- should tolerate, as much as possible, a wide range of different ways of life. It is largely that emphasis on tolerance that sets liberals apart from social conservatives. Social conservatives believe that treating people with respect means treating them as they should be treated given the one true way people ought to live. If that is the Christian way, for example, then treating people with respect means treating them as equally subject to the values inherent in Christianity.

That point was most recently echoed in conservative commentaries on the Terri Schiavo case, but it emerged even more explicitly in the Rev. Bob Jones III's now-infamous open postelection letter to President Bush. As Jones wrote, "In your re-election, God has graciously granted America -- though she doesn't deserve it -- a reprieve from the agenda of paganism. You have been given a mandate. We the people expect your voice to be like the clear and certain sound of a trumpet." The letter went on to urge the president to pass "legislation that is defined by biblical norm(s)," "to appoint many conservative judges," and "to leave an imprint for righteousness upon this nation that brings with it the blessings of Almighty God."

In recoiling from that position, some left-leaning thinkers have argued that liberals need to adopt what the philosopher Richard Rorty calls an "ironic" attitude toward our own liberal principles. If we want to be truly tolerant, the thought goes, we need to stop seeing liberal views about equality and tolerance as objective moral truths. Instead, we should see them as morally neutral. Otherwise, we risk being intolerant about tolerance.

Tempting as it may sound to some, that line of reasoning is a mistake. It undermines liberalism's ability to galvanize passionate intensity. That is most obvious when liberal tolerance is defended, as it sometimes is in the popular news media, on the basis of naïve relativism: If different ways of life deserve equal respect, then all ways of life are equally good. The just state must remain neutral with regard to questions of how to live because there are no objectively true or false answers to such questions. So we should live and let live.

But relativistic liberalism is clearly a rational and political failure. It is a rational failure because its key inference is invalid. From the fact that many different forms of life deserve equal respect, it doesn't follow that we can't criticize some as being worse than others. It is a political failure because if every way of life is as good as any other, then what motivation does the liberal have for opposing the conservative's and trumpeting his or her own? It is hard to stand up and fight for a view that sees itself as no better than the opposition's. Passion has no foothold.

Bloodlessness is also the result of more philosophically sophisticated attempts to understand liberalism as morally neutral. The preeminent architect of contemporary American liberal thought, the late John Rawls, argued over the last decade and a half that tolerance demands that liberalism should be understood as a "political, not metaphysical" doctrine. That is, we should not defend liberal principles, such as the principle of tolerance itself, by asserting that they represent fundamental moral truths. Rather, Rawls said, in defending those principles and whatever follows from them -- for instance, a right to abortion, the constitutionality of same-sex marriage, etc. -- the liberal must appeal only to the uncontroversial popular consensus -- that is, "public reasons" that every reasonable person implicitly accepts. In short, since the liberal state must remain neutral among different conceptions of morality, liberal principles must themselves be justified in a way that is morally neutral and that all reasonable points of view can accept.

Rawls's position was complex, and he was certainly no relativist. But his understanding of tolerance was motivated by a related desire: to make liberal values somehow "float free" from any particular moral outlook. And that is troubling, for at least two reasons. The most obvious problem is that the idea that liberal principles are neutral among all "reasonable" points of view only makes sense if "reasonable" is defined in a distinctively liberal way. The less obvious problem is that were I to believe that my foundational liberal principles were already held by all reasonable people -- whether they know it or not -- it is difficult to see why I should bother to vigorously defend my principles. The battle, in effect, would already be won, so there would be little point in getting worked up about it. Again, passion drains away.

If we want to rediscover an intellectual foundation for liberal passion, then we need to forget about the beige of moral neutrality and favor the red of moral conviction. We need to remember that moral convictions are just that, beliefs that some political ideals are objectively better for society than others.

It is also worth remembering that lots of Americans already view liberals as full of passionate conviction. Take last fall's fight over gay marriage. Eleven states, it turned out, passed bans against same-sex marriage. Liberals -- rightly in my view -- protest that such bans treat citizens unequally and privilege one way of life over others. But to many, it is liberals who are pushing their values into other folks' faces. In the endearing language of talk radio, conservatives across the nation rally to prevent "activist liberal judges" from "imposing liberal values" and "special rights." In short, far from seeing liberalism as value-neutral -- Rawls's "political, not metaphysical" account of fair play -- those on the right see liberalism as a rival comprehensive morality, a rival way of life.

Conservatives are right about that. And there is no need for liberals to apologize for it. As philosophers like Joseph Raz have argued, liberalism isn't value-neutral, nor should it be. Liberal values like tolerance and equality are just that -- liberal values, neither merely "true for us" nor ethically inert. Rather, they are part of a particularly liberal ideal of the good life -- an abstract ideal but an ideal nonetheless. The progressive liberal believes that other things being equal, the state should respect our individual rights and tolerate different ways of living that don't violate others' rights. That means that progressive liberalism is not neutral among all ways of life. The progressive liberal is committed to opposing ways of life that value racial and sexual discrimination or collapse the separation between church and state. The progressive liberal believes that societies that sanction torture, or are intolerant toward gays, or allow their citizens to be economically exploited are, in those respects, worse societies.

As much as possible, liberals need to argue for their case, as Rawls has emphasized, by appealing to reasons shared by all. But they cannot assume that all of their liberal values will be so shared, even if some are. And that is not surprising -- democratic politics, after all, is aimed at getting others to see things your way. So, much as social conservatives do, we liberals need to stand up for our values and persuade others to share them. And we must do so by defending our theory in the way that one defends any theory: by arguing for its worth on its own terms and for the beneficial consequences it brings.

But what of passion? Walzer rightly claims that standard liberal theory has too often ignored the role involuntary associations like family, race, and religion play in shaping our identities and stirring our blood. But we wouldn't share emotional bonds with other group members if we didn't also share values. I've argued that liberals do share a set of values, and that passionate commitment to them -- including the values of equality and tolerance -- requires seeing them as objectively worth defending. But it is also worth remembering that values are not just crystalline principles, sparkling under the light of reason. To talk about my values is to talk about what I care about, what I admire, what I aim for, and what I want others to aim for as well: tolerance for a wide array of lifestyles, compassion for those less fortunate than we, and the moral courage to stand up for our rights and the rights of others. So far from being a cold theory of rational neutrality, progressive liberalism is a theory of value -- and theories of value are theories of what we care about.

Liberals favor reason and evenhandedness; they are tolerant; they believe in autonomy, individual rights, and equality. But they can and should be fervent in defending the truth of those ideals. Liberals have no inherent problem with passion. They just need to remember to keep passion alive, and not to waiver in the face of spirited opposition. They just need to remember their backbone.

Michael P. Lynch is an associate professor of philosophy at the University of Connecticut and author of True to Life: Why Truth Matters (MIT Press, 2004).

Siva Vaidhyanathan on Why Copyright Matters Now

Copyright as Cudgel

By SIVA VAIDHYANATHAN

Let's pretend that a journal has just published your harshly negative review of a book in your field. In this review, you quote short passages from the book, confident that the long-accepted concept of "fair use" enables you to make even unwelcome use of copyrighted material for purposes of criticism.

But a week or so after the electronic version of the review appears on the publication's Web site, the editors inform you that it violates the 1998 Digital Millennium Copyright Act, and that they are removing it. You are welcome to respond. You are free to argue that the use of the copyrighted quotes falls under fair use. But the publication is under no obligation to accept your defense. So you publish the review on your own Web page. But you soon discover that all of the major Web search engines have removed your site from their indexes.

That couldn't happen, you say? Welcome to the new millennium.

When Congress brought copyright law into the digital era, in 1998, some in academe were initially heartened by what they saw as compromises that, they hoped, would protect fair use for digital materials. Unfortunately, they were wrong. Recent actions by Congress and the federal courts -- and many more all-too-common acts of cowardice by publishers, colleges, developers of search engines, and other concerned parties -- have demonstrated that fair use, while not quite dead, is dying. And everyone who reads, writes, sings, does research, or teaches should be up in arms. The real question is why so few people are complaining.

Consider the recent case of the Church of Scientology International and the search engine Google. The wealthy church used the threat of a well-financed lawsuit -- and the 1998 act's provision that a service provider will not be liable for infringement if it moves with "dispatch" to delete offending material -- to persuade Google to block links to several sites that included criticism of Scientology. "Had we not removed these URL's, we would be subject to a claim for copyright infringement, regardless of its merits," Google said.

Back in the 20th century, if someone had accused you of copyright infringement, you enjoyed that quaint and now seemingly archaic guarantee of due process. Today, due process is a lot harder to pursue, and the burden of proof increasingly is on those accused of copyright infringement. For the copyright act, in essence, makes the owner of every Internet service provider, content host, and search engine an untrained copyright cop. The default action is censorship.

The conflict between the Church of Scientology and Google is one of many such cases. In July 1999, shortly before Talk magazine made its debut, the writers John Aboud and Michael Colton posted online a parody of the magazine, which -- until it folded -- was produced by a partnership between Hearst Magazines and Miramax Films. Miramax lawyers sent a cease-and-desist letter to Earthlink, the Internet company that owned the server on which the parody sat. Earthlink immediately shut the parody down, although it restored the site after Talk's editor, Tina Brown, appealed to let it stand. Lawyers for both Miramax and the Church of Scientology cited the Digital Millennium Copyright Act (often known by its abbreviation, DMCA) as the basis of their claim.

Besides prompting such censorship, the act has another major provision, which upends more than 200 years of copyright law that has, until now, served democracy well: the principle that what copyright law does not specifically protect remains available to all to use, for whatever purpose the user sees fit. The DMCA bars the circumvention of electronic access controls that protect online works, a provision that seems to block the use of even those portions of works that might be in the public domain.

How direct the assault on academic freedom could become was demonstrated in spring 2001, when the music industry tried to prevent a computer scientist, Princeton University's Edward W. Felten, from presenting a scholarly paper at a conference. The Recording Industry Association of America argued that the paper dealt with encryption algorithms that it hoped to use to protect digital content, and so violated the copyright law. The association backed down, but the Felten case is merely the best known of several efforts that online-content industries have made to prevent researchers from discussing certain technologies and algorithms.

All of that is the reason I view the Digital Millennium Copyright Act as reckless, poorly thought out, and with gravely censorious consequences. Yet, back in 1998, when Congress passed the law, there was little public outcry -- or interest, for that matter. The news coverage tended to treat the act as a harmless extension of copyright to the new digital world. Most often, those who raised concerns were dismissed by advocates of copyright protection as radicals who were against copyright in general.

Since 1998, the DMCA has revealed itself to be a failure. It has not been effective at preventing piracy in cyberspace, yet it has managed to stifle harmless and even beneficial uses of material for research and teaching.

Various groups -- software producers, artists, writers, librarians, media activists -- have protested. But, with a few notable exceptions -- most significantly the Digital Future Coalition, an alliance that includes law professors, library groups, and scholarly associations -- we academics have been painfully slow to argue against abuses in and of copyright law.

When the DMCA was being considered, the Digital Future Coalition put up an admirable defense of the principles of access and fair use for teaching, research, and criticism. But the commercial forces allied against it were too formidable. In the absence of widespread public outcry, Congress could only rely on what the most powerful interested parties told it: that if some copyright protection is good, then more must be better. Had there been some grassroots activism by teachers, writers, and researchers, Congress might have realized that it was considering reckless legislation.

At the 2001 meeting of the American Studies Association, fewer than a dozen people attended a session that I organized on how the regulation of intellectual property threatens intellectual freedom. And those sessions have been few and far between at most academic meetings. If most of you and your colleagues have even heard of problems with the Digital Millennium Copyright Act, chances are you assume that other people will take care of them. Won't they?

Academics have more to lose in the copyright wars than most people do. We are not only the source of much of the "content" in the world. We are -- through our teaching and research -- among the major conduits and consumers of the content that others provide. We have a vested interest in keeping information flowing as cheaply, widely, and quickly as possible. We need a rich, diverse, affordable, and accessible information ecosystem to do our jobs.

So why have academics been caught napping? I have several hypotheses. They have to do with recent academic practice and culture, and its relation to our broader society.

Perhaps we have too blithely assumed that Congress and the American people actually value teaching and research and would not pass laws that impede either. We take our privileged positions in society for granted, and don't work to explain the importance of what we do. That is at the root of our discomfort when the public and legislators tell us that our scholarship is too arcane, our costs too high, and our workload too light.

Perhaps we have been too busy tilting at the windmills of the culture wars and the science wars to realize that the common interests of all academics are threatened. Internecine strife is so much more immediate. Perhaps, when and if some of us have realized that copyright matters, we have asked only, What's in it for me? Say "copyright" to many academics, and do they think primarily about protecting their own rights (even to a lot of what is really little more than worthless online content) -- instead of the wider world of scholarship?

More broadly, a mood has come to prevail not only in the academy -- particularly among administrators and trustees -- but also among legislators that has strengthened the thrust of copyright revision. Together, trends in scholarship, copyright law, and mood have combined to generate a set of assumptions about academic work that are weighted toward the exploitation of professors and the protection of a university's "property," and against sharing or distributing knowledge. The rising importance of privately sponsored research on campus and efforts by universities to capitalize on faculty research, distance education, and other opportunities are changing the nature of universities. While they are still the largest content-consuming institutions around, they have been thinking and acting like content providers -- and have missed the radical implications of changed copyright law.

As a result, course packets that used to be easy to assemble and affordable to students are now a hassle and a big expense. Professors are abandoning them in favor of prefabricated published readers or less-convenient library reserves. Getting permission to quote from a song or to include an old photograph in a scholarly publication is getting to be prohibitively expensive. Some professional journals are demanding that academic authors assign all rights in all media in perpetuity to them, then gouging subscribers and libraries for the right to read materials that academics weren't compensated for in the first place. Online journals are replacing paper volumes, allowing publishers to extort all sorts of user restrictions from libraries. And those are just the micro-horror stories, the short-term costs of current trends.

In a larger sense, while academics have slept, the content industries have systematically stifled flows of essential information, created artificial scarcity, and made certain areas of basic research potentially illegal.

Had we made a unified public stand against the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act in 1998, which extended the term of copyright protection by 20 years, we might have been better able to alter the terms of discussion, if not smooth out some of the more odious portions of the laws. Had we been able to persuade humanities scholars to step back from all the "problematizing" and "theorizing" that fills so many seminar rooms and journals and, instead, organize around clear themes and concerns, we could have joined scientists in their decade-long effort to keep information flowing by protesting ever-more-costly journals. And had administrators and lobbyists been less concerned about ways to capitalize on the false promise of online, for-profit education and more concerned with the actual future of education, we might have been able to unite in voicing opposition to copyright policies that threaten us all. Despite fashionable cynicism about our political system, Congressional representatives still read and care about constituent mail. And they still care about their local education institutions.

Fortunately, scholars and teachers, even when silent, will benefit from the hard work of public-interest groups like the Electronic Frontier Foundation, digitalconsumer.org, and publicknowledge.org. These activist organizations are struggling to accurately define the "public interest" in copyright and debating how best to articulate the issues to a diverse public. But without widespread, grass-roots support, these groups will face the same frustration that the Digital Future Coalition experienced in 1998 -- a remarkably powerful and well-financed campaign from the entertainment industry. They need us as an ally.

Public-interest copyright activists are an ideologically diverse group. Many of us are classically liberal, civically republican, and philosophically pragmatic. We focus on restoring the balanced, humane principles that used to guide American copyright. We frame our rhetoric in terms of individual freedom, a modest level of state intervention, and a flexible, adaptable regulatory system. Others come from the perspective of religious freedom and conservative values. They want parents and teachers to have the right and ability to edit digital material they deem offensive, even if the DMCA prevents the use of the technologies required to alter the work.

Other equally active critics of recent trends in copyright take a Marxist perspective. They warn of the coming postindustrial infotainment-industrial complex and the ways it has enlisted the state in efforts to make commodities of all information and culture. Still others espouse a form of information anarchy. According to them, if we empower every user, limit the power of large corporations to regulate the flow of information, and democratize information generally, we can achieve a state of absolute liberty in which we all can both create and consume material.

All the critics lament the erosion of the democratic safeguards that made American copyright such a brilliant and effective system and that helped fill our libraries with books. Copyright can censor. It is a prohibition on what we may reproduce, quote, perform, and distribute. Over the past 200 years, however, through both statutes and the common law, the copyright system developed four safeguards that mitigated the potentially censorious power of its prohibitions:

* The principle of fair use -- in essence, a legal defense against an accusation of copyright infringement. If you are accused of infringing, you can make an argument that your use of the protected works is "fair" because of some combination of these factors: The nature of the original work makes it important that it be publicly discussed; the nature of your use of it is important because of teaching, research, or commentary; you do not use very much of the original work; your use does not significantly affect the market for the original work. In the public discourse about fair use, it has served as a term representing a collection of uses that consumers could consider "fair," like recording television shows for later viewing, making audiocassette tapes or MP3 mixes from compact disks, and limited copying for private, noncommercial sharing.

* The principle that after the "first sale" of a copyrighted item, the buyer can do whatever he or she wants with the item, except publicly perform the work or distribute unauthorized copies for sale. The first-sale doctrine is what makes lending libraries possible.

* The concept that copyright protects the specific expression of ideas, but not the ideas themselves. This is the least understood but perhaps most important tenet of copyright: You can't copyright a fact or an idea. Because you can't, anyone may repeat your idea, whether to criticize it or build on it. Journalism, along with many other forms of common expression, depends on the principle.

* The promise that copyright will last -- as the Constitution demands -- for only "limited times," thus constantly replenishing the public domain. The public domain allows for low-cost scholarship, research, and revision of formerly copyrighted works. The reason that bookstores are filled with high-quality yet affordable scholarly editions of Mark Twain's The Adventures of Huckleberry Finn and John Stuart Mill's On Liberty is that they are in the public domain. The reason there is no annotated scholarly edition of Ralph Ellison's Invisible Man is that it is not.

In other words, copyright, when well balanced, encourages the production and distribution of the raw material of democracy. It is supposed to be an economic incentive for the next producer, not a guarantee for the established one. But after more than 200 years of legal evolution and technological revolution, copyright no longer offers strong democratic safeguards. It is out of balance. Each of the four safeguards is under attack by the copyright cartel.

We need to restore them. Some of us, therefore, are generating friend-of-the-court briefs for the pending Supreme Court hearing on the constitutionality of the Copyright Term Extension Act, in the case Eldred v. Ashcroft. We are fighting for the First Amendment right of a hacker magazine, 2600 (and for the right of everyone), to describe certain illegal algorithms and create hyperlinks to other pages that describe or offer those algorithms. And we are playing defense in the halls of the Capitol against pending legislation that would create a new and dangerous property right in databases of facts, and even more odious legislation that would require all producers of electronic hardware and software to include anticopying devices in their products. On the positive side, we are supporting Rep. Rick Boucher, a Virginia Democrat, who is considering introducing legislation that would temper the more censorious aspects of the DMCA.

One way to move toward a definition of the "public interest" in copyright is to examine its historical roots and the various concerns that interested parties have had with the evolving system over the past 400 years.

At its birth in England, copyright was an instrument of censorship. In 1557, Mary Tudor, the Roman Catholic queen, capped off a 120-year monarchal struggle to censor printing presses by issuing a charter to the Stationers' Company, a guild of printers. Only members of the company could legally produce books, which had been licensed by the crown.

In contrast, the American copyright system, in place since 1790, has reflected republican values. It grants a limited, temporary monopoly to a specific publisher. But just as important, the framers and later jurists concluded that creativity depends on the use, criticism, supplementation, and consideration of previous works. Therefore, they argued, authors should enjoy a monopoly just long enough to provide an incentive to create more, but the work should live afterward in the "public domain," as common property of the reading public.

James Madison, who introduced the copyright-and-patent clause to the Constitution, did not engage in absolutist "property talk" about copyright. He argued in terms of "progress," "learning," and other such classic republican virtues as literacy and an informed citizenry. When President George Washington declared his support for the Copyright Act of 1790, he proclaimed that it would be a step toward "teaching the people themselves to know, and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority." Thomas Jefferson -- author, architect, slave owner, landowner -- had no misgivings about protecting private property. Yet he expressed some serious doubts about the wisdom of copyright, based on his suspicion of concentrations of power and artificial monopolies.

I believe that the Digital Millennium Copyright Act represents a failure of that trust in the copyright system to cope with the democratic potential of changing communication technologies.

The danger is clear. It's time to find a way to discuss copyright issues in the public sphere that doesn't leave substantive deliberation to a select group of trained experts. The public has as deep a stake in the outcomes of the copyright debate as any lobbyist or plaintiff. At one point, Napster had 77 million registered users, more than twice the number of America Online users. And there are few Americans who have not wondered about the intrusive power of that video "mattress tag," the FBI warning at the start of every rental videotape. But the common rhetoric about copyright obscures much of what is at stake.

We make a grave mistake when we choose to engage in discussions of copyright in terms of "property." Copyright is not about "property" as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons. While, technically, it describes real property as well, it also describes a more fundamental public good that precedes specific policy choices the state may make about the regulation and dispensation of property. But we can't win an argument as long as those who hold inordinate interest in copyright maximization can cry "theft" at any mention of fair use or users' rights. You can't argue for theft.

Two rhetorical strategies have emerged. Most prominent is "commons talk." A growing number of activists and law professors are pushing for an appreciation of the "information commons." Sparked by a brilliant 1997 article by the Duke University law professor James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?," this movement toward preservation and expansion of an information commons resembles the environmental movement 40 years ago. With good luck and hard work, activists hope to build a similar level of public concern and awareness about how information operates in society, and the need for it to be commonly owned and shared. For an important statement on the information commons, see David Bollier's Silent Theft: The Private Plunder of Our Common Wealth (Routledge, 2002).

The second rhetorical strategy involves focusing on users of copyrighted material -- everyone who reads, writes, watches, photographs, listens, or sings. This is a more pragmatic approach, intended to warn people that the harmless acts they have taken for granted for years, like making a mixed tape or CD for a party, or "time shifting" television programs and skipping commercials, are threatened by recent changes in law and technology. The organization digitalconsumer.org is promoting "The Consumer Technology Bill of Rights," which makes private, noncommercial uses positive rights instead of weak defenses to accusations of infringement.

Within academe, we can use those strategies to make clear to our students, our peers, our Congressional representatives, and the public that copyright is a bargain, a good deal for everyone. As both content producers and users, we are in a good position to outline the complexity and benefits of such a deal. And we are in a good position to highlight the abuses that copyright holders have engaged in since 1998.

We must be blunt about the current system's threats to free speech, intellectual freedom, and the free flow of information. We must be careful not to be trapped in nihilistic rhetoric about the "end of copyright." Copyright need not end if we can rehabilitate and rehumanize it. Our jobs depend on it.

Siva Vaidhyanathan, an assistant professor of information studies at the University of Wisconsin at Madison, will become an assistant professor of culture and communication at New York University this fall. He is the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press, 2001).

so much for the catholic church moving forward...

The New York Times > Opinion > Op-Ed Columnist: Smoke Gets in Our News:

"The white smoke yesterday signaled that the Vatican thinks what it needs to bring it into modernity is the oldest pope since the 18th century: Joseph Ratzinger, a 78-year-old hidebound archconservative who ran the office that used to be called the Inquisition and who once belonged to Hitler Youth. For American Catholics - especially women and Democratic pro-choice Catholic pols - the cafeteria is officially closed. After all, Cardinal Ratzinger, nicknamed 'God's Rottweiler' and 'the Enforcer,' helped deny Communion rights to John Kerry and other Catholic politicians in the 2004 election."

Justice Scalia - the "Activist Judge"

Not since the 1960's, when federal judges in the South were threatened by cross burnings and firebombs, have judges been so besieged. Senator John Cornyn, Republican of Texas, set off a furor when he said judges could be inviting physical attacks with controversial decisions. And last week the House majority leader, Tom DeLay, called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: "We set up the courts. We can unset the courts."

Conservatives claim that they are rising up against "activist judges," who decide cases based on their personal beliefs rather than the law. They frequently point to Justice Antonin Scalia as a model of honest, "strict constructionist" judging. And Justice Scalia has eagerly embraced the hero's role. Last month, after the Supreme Court struck down the death penalty for those under 18, he lashed out at his colleagues for using the idea of a "living Constitution" that evolves over time to hand down political decisions - something he says he would never do.

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Conservative politicians insist that courts should defer to the democratically elected branches, but conservative judges do not seem to be listening. The Supreme Court's conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act. The court has even established a bizarre series of hoops Congress must jump through to pass a law protecting Americans' 14th Amendment equal-protection rights. Congress must prove in many cases that the law it passed is "congruent" and "proportional" to the harm being addressed. Even John Noonan Jr., an appeals court judge appointed by President Reagan, has said these new rules - which Justice Scalia eagerly embraces - reduce Congress to the level of an "administrative agency."

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

The inconsistency of the conservative war on judges was apparent in the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist courts, does not want to investigate the federal trial judge and the United States Court of Appeals for the 11th Circuit for judicial activism, but for the opposite: for refusing to overturn the Florida state courts' legal decisions, and Michael Schiavo's decisions about his wife's medical care.

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument - it is an unapologetic defense of judicial activism.

When it comes to judicial activism, conservative judges are no better than liberal ones - and, it must be said, no worse. If conservatives are going to continue their war on the judiciary, though, they should be honest. They do not want to get rid of judicial activists, a standard that would bring down even Justice Scalia. They want to rid the courts of judges who disagree with them.

America's Unregulated Future?

April 17, 2005 The Unregulated Offensive By JEFFREY ROSEN I. Justice Thomas's Other Controversy f you think back to Clarence Thomas's Supreme Court confirmation hearings in 1991, what most likely comes to mind are the explosive allegations of sexual harassment made by the law professor Anita Hill. Years from now, however, when observers of the court look back on the hearings, they may well focus on a clash that preceded Hill's accusations -- an acrimonious exchange that few remember today. Early in the hearings, Joseph Biden, the Delaware Democrat who was chairman of the Senate Judiciary Committee, voiced a concern about Thomas's judicial philosophy. In particular, he singled out a speech that Thomas gave in 1987 in which he expressed an affinity for the ideas of legal scholars like Richard A. Epstein. A law professor at the University of Chicago, Epstein was notorious in legal circles for his thesis that many of the laws underpinning the modern welfare state are unconstitutional. Thomas tried to assure Biden that he was interested in ideas like Epstein's only as a matter of ''political theory'' and that he would not actually implement them as a Supreme Court justice. Biden, apparently unpersuaded, picked up a copy of Epstein's 1985 book, ''Takings: Private Property and the Power of Eminent Domain,'' and theatrically waved it in the air. Anyone who embraced the book's extreme thesis, he seemed to be suggesting, was unfit to sit on the court. At the time, it was impossible to know whether Biden was right to worry. He was surely right, though, that Epstein was promoting a legal philosophy far more radical in its implications than anything entertained by Antonin Scalia, then, as now, the court's most irascible conservative. As Epstein sees it, all individuals have certain inherent rights and liberties, including ''economic'' liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation -- when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes. In Epstein's view, these libertarian freedoms are not only defensible as a matter of political philosophy but are also protected by the United States Constitution. Any government that violates them is, by his lights, repressive. One such government, in Epstein's worldview, is our government. When Epstein gazes across America, he sees a nation in the chains of minimum-wage laws and zoning regulations. His theory calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt's New Deal. After Thomas joined the Supreme Court, Biden's warnings seemed prescient. In 1995, echoes of Epstein's ideas could be clearly heard in one of Thomas's opinions. By a 5-4 majority in United States v. Lopez, the court struck down a federal law banning guns in school zones, arguing that the law fell outside Congress's constitutional power to regulate interstate commerce. Lopez was a judicial landmark: it was the first time since the New Deal that the court had limited the power of the federal government on those grounds. Thomas, who sided with the majority, chose to write a separate opinion in which he suggested that even his conservative colleagues had not gone far enough. The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government's power. He assailed his liberal colleagues for characterizing ''the first 150 years of this Court's case law as a 'wrong turn.''' He continued, ''If anything, the 'wrong turn' was the Court's dramatic departure in the 1930's from a century and a half of precedent.'' Thomas did not cite Epstein directly in his opinion. But to anyone familiar with Epstein's writings, the similarities were striking. Indeed, Thomas's argument closely resembled one Epstein had made eight years earlier in ''The Proper Scope of the Commerce Power'' in the Virginia Law Review -- so closely, in fact, that Sanford Levinson, a liberal law professor at the University of Texas, accused Thomas of outright intellectual theft. (''The ordinary standards governing attribution of sources -- the violation of which constitutes plagiarism -- seem not to apply in Justice Thomas's chambers,'' Levinson wrote in the Texas Law Review.) Biden's fear that Epstein's ideas might be written into law had apparently been realized. And the fear would continue to be realized in other courts throughout the 90's as a small but energetic set of lower-court judges, sympathetic to libertarian arguments, tried to strike down aspects of the Clean Water Act, the Endangered Species Act and other laws, challenging powers of the federal government that had come to be widely accepted during the second half of the 20th century. Chief Justice William Rehnquist is expected to announce his resignation sometime this year, perhaps before the end of the court's current term in June. Rehnquist's retirement would create at least one confirmation hearing for a new justice, and two hearings if President George W. Bush chooses to nominate one of the current justices to be chief justice. At the same time, there is a political battle looming in the Senate over seven federal appellate-court candidates whose nominations were blocked by Senate Democrats during Bush's first term but who were renominated by the president after his re-election. Many liberals and centrists worry, and many conservatives hope, that the doctrine favored by these judicial candidates is originalism, the stated constitutional theory of Scalia. Originalists don't like interpreting the Constitution in light of present-day social developments and are generally skeptical of constitutional rights -- like the right to have an abortion -- that don't appear explicitly in the text of the Constitution. At least in theory, those in the originalist camp champion judicial restraint and states' rights. But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court. Critics of the movement note, with some anxiety, that it has no shortage of targets. Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called ''Fundamentally Wrong.'' As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that ''many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.'' In what Sunstein described as the ''extreme nightmare scenario,'' the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized. Any movement with such ambitious goals must be patient and take the long view about its prospects for success. Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. ''I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice,'' he says. ''We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there.'' II. Glory Days ll restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties. Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition. The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. The court struck down the law on the grounds that it violated the bakers' freedom of contract, which was arguably, but not explicitly, included in the 14th Amendment's protections of ''liberty'' and ''property.'' In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,'' referring to the celebrated Social Darwinist and advocate of laissez-faire economics. Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act. In February 1937, Roosevelt threatened to pack the court with justices who would presumably be more deferential to national regulation of the economy. Within a month, the court backed down, upholding a state law imposing a minimum wage for women and minors. (The majority opinion noted that ''the unparalleled demands for relief which arose during the recent period of depression'' had dislodged old laissez-faire nostrums about the equal bargaining power of workers and employers.) The following year, in the Carolene Products case, the court announced that it would uphold all economic regulations unless no reasonable person could believe them to be rational. Today, the conventional wisdom among liberal and conservative legal thinkers alike is that Lochner was decided incorrectly and that the court's embrace of judicial restraint on economic matters in 1937 was a triumph for democracy. Members of the Constitution in Exile movement do not share this view. Not long ago, I visited Greve in his office on 17th Street in Washington. Greve, a witty and sardonic libertarian, is the American Enterprise Institute's John G. Searle Scholar (his benefactor was a pharmaceutical magnate), and over the course of a long conversation, he explained that 1937 was, in his opinion, an unmitigated disaster, resulting in the judicial abandonment of constitutional limits on government power that are inherent in the nature of a free society and the creation of a regulatory behemoth. As the administrative state ballooned during the 60's and 70's, judicial deference became even more pervasive: new independent regulatory agencies, from the Environmental Protection Agency to the Federal Communications Commission, began issuing a slew of regulations. To Greve's dismay, much of the regulatory state is politically quite popular; even a Republican Congress, he acknowledged, seems unlikely to roll back most post-New Deal programs and regulations. ''Judicial activism will have to be deployed,'' he said. ''It's plain that the idea of judicial deference was a dead end for conservatives from the get-go.'' Now 48, Greve was born in Germany and came to embrace a libertarian outlook during his undergraduate years at the University of Hamburg, from which he graduated in 1981. That year, he visited the United States on a Fulbright and ended up at Cornell for a doctorate in government. (''I consider myself a refugee from the welfare state,'' he said with a chuckle.) His Ph.D. contrasted liberal environmental litigation in Germany and the United States. Greve was frustrated but also impressed by the way that well-financed liberal groups like Ralph Nader's Public Citizen worked in the courts to expand the reach of environmental laws, and he decided that the conservative movement needed to create organizations that would do exactly the opposite. One of Greve's goals at the American Enterprise Institute is to convince more mainstream conservatives that traditional federalism -- which is skeptical of federal, but not state, power -- is only half right. In his view, states can threaten economic liberty just as significantly as the federal government. He is still exercised by the lawsuit brought in the 90's by 46 states against the tobacco companies, which resulted in a $246 billion settlement. ''Taking the tobacco settlement down would have a huge public impact -- that would push you in the right direction,'' he said, taking a long drag on a cigarette. Although Greve's liberal critics have argued that resurrecting strict constitutional limits on federal and state powers would essentially mean a return to the unregulated climate of the Gilded Age, Greve emphasized that he doesn't have the Gilded Age in mind. The ''modern, vibrant, mobile'' and global economy of the 21st century, he argued, is competitive enough to regulate itself in most areas. Though he envisions a role for government in protecting against egregious forms of coercion, force and fraud, all other abuses would be regulated by private agreements among citizens. ''I don't think much would be lost if we overturned federal wetlands regulations or if we repealed the Endangered Species Act, just by way of illustration,'' he said. Greve expressed cautious optimism that his views will get a sympathetic hearing from some of the federal appellate judges renominated this year by the president. He said he is especially happy that Bush has tapped William Pryor, the former attorney general of Alabama. Greve noted that in one of the big Supreme Court cases involving the limits of federal power, which ultimately invalidated parts of the Violence Against Women Act, Pryor wrote a brief that Greve and other libertarians greatly admired. ''Bill Pryor is the key to this puzzle; there's nobody like him,'' Greve said. ''I think he's sensational. He gets almost all of it.'' III. The Network he idea of creating a network of activist conservative litigation groups was proposed in the early 70's by Lewis Powell, a corporate lawyer and future Supreme Court justice. In the years following the defeat of the Goldwater Republicans in 1964, conservatives were casting about for a new political strategy. At the same time, business interests were alarmed by the growth of the regulatory state and, in particular, the marked increase in environmental litigation. In 1971, Powell wrote a landmark memo for the United States Chamber of Commerce urging a counterattack. In addition to encouraging conservatives to develop a systematic and long-term effort to spread their ideas in the media, Powell recommended that conservatives should get over their aversion to judicial activism. ''Especially with an activist-minded Supreme Court,'' he wrote, ''the Judiciary may be the most important instrument for social, economic and political change.'' At the time, Powell's idea was being echoed in California by a group of conservatives close to Ronald Reagan, who had recently been re-elected governor. Reagan, who pledged to reform welfare in his 1970 campaign, set up a task force to do so, headed by his chief of staff, Edwin Meese III. The resulting reforms, which restricted welfare eligibility and cut the state's welfare rolls by more than 250,000 in three years, were attacked in the courts by liberal groups. Reagan's supporters were infuriated that there were no conservative groups that could respond in kind. ''The liberals were using the courts,'' Meese recalled recently during a conversation in his office at the Heritage Foundation in Washington. ''We wanted to make it a fair fight.'' According to a history of conservative legal activism published by Heritage, ''Bringing Justice to the People,'' the first person to take up Powell's challenge, in the early 1970's, was John Simon Fluor, a wealthy Reagan supporter. Fluor was upset that environmental groups had managed to delay the construction of the Alaska pipeline and the initiation of offshore drilling in the Gulf of Mexico. After conversations with fellow Reagan supporters, including Meese, Fluor provided the seed money for the Pacific Legal Foundation, the first conservative property-rights litigation shop in the nation. It was staffed with members of the Reagan welfare-reform team and incorporated in 1973. Other conservative business interests quickly replicated Fluor's model. In 1975, money from the major oil companies helped to create the National Legal Center for the Public Interest, an umbrella organization for several regional litigation groups. Each group's focus was determined by its location. The most influential spinoff group to emerge was the Mountain States Legal Foundation, financed by the beer magnate Joseph Coors, which was set up in 1977 to challenge federal land-use and natural-resources regulations, long a source of political resistance in the West. (The foundation's distinguished alumni of the period include Gale Norton, now secretary of the interior, and Jon Kyl, now a senator from Arizona.) Though these conservative groups clearly served the interests of local businesses, they also attracted a number of libertarians, many of whom were not always consistent supporters of big business. One of the more thoughtful of these is Chip Mellor, who joined the Mountain States Legal Foundation in the late 70's and is now the head of the Institute for Justice, a libertarian public-interest law firm in Washington. When I visited him recently at his office near the White House (with an impressive corner view of the Old Executive Office Building), he spoke engagingly of his youthful idealism. ''I came out of the protests of the 1960's,'' he recalled, ''where I was dissatisfied with the right and the left.'' He immersed himself in the writings of Milton Friedman, the Nobel Prize-winning free-market economist, as well as those of the libertarian novelist Ayn Rand. ''It was quite illuminating for me to read Friedman and Rand and to realize that you could not divorce economic liberty and private property rights from the truly free individual,'' Mellor said. ''I came to see that societies where those rights were taken away inevitably led to people impoverished in monetary wealth and basic liberties.'' When he was a law student at the University of Denver, Mellor saw a recruiting flier for the Mountain States Legal Foundation and was intrigued by its mention of property rights. Sporting long hair and a handlebar mustache, he showed up without an appointment, but hit it off nevertheless with the foundation's president, James Watt. (Watt would later achieve renown for his knockdown battles with environmentalists as Reagan's secretary of the interior.) By 1982, Mellor had risen to become the acting president of the foundation, and he soon hired a young law-school graduate and fellow libertarian named Clint Bolick. The two became fast friends and pledged to sustain their passion for libertarian principles above partisan politics. (A fierce defender of Clarence Thomas during his nomination battle, Bolick left the Republican Party not long ago in protest over its anti-immigrant policies and the Iraq war.) Bolick, whose sunny idealism is hard to resist, still gets indignant when he recalls how Mellor came to part ways with Mountain States. It began when the foundation filed a free-speech lawsuit opposing an exclusive cable-TV franchise granted by the city of Denver to a local businessman who happened to be a friend of Joseph Coors. When Coors resigned from the board to protest the direction that Mountain States seemed to moving in, it set in motion a process that led, a year later, to Mellor being fired. ''Chip and I discovered that there is a world of difference between an organization that is pro-business and an organization that is pro-free enterprise,'' Bolick told me recently. ''We learned that some of the influential backers of the movement were more pro-business than pro-free enterprise.'' After the firing, Mellor said, he and Bolick sat in Mellor's backyard with tears in their eyes. ''We pledged this is wrong, and someday we're going to do it right,'' he said. They soon got their chance. After stints in Washington with the Reagan administration, in which Mellor was a deputy general counsel at the Department of Energy and Bolick was an assistant at the Equal Employment Opportunity Commission (then led by Clarence Thomas), the two men, in 1991, persuaded Charles Koch, an oil and gas magnate, to give them $350,000 a year in seed money from his private foundation to start the Institute for Justice. (To this day, the institute does not actively solicit corporate financing, and its $6.6 million annual budget is far lower than those of its liberal counterparts, like the A.C.L.U.) Before long, Mellor and Bolick had achieved victories in lower courts for clients without deep pockets. In a series of cases, they challenged state licensing laws that made it hard for small-business entrepreneurs to break into highly regulated professions. Their successful clients included limo drivers in Las Vegas, African-American hair braiders in San Diego and casket sellers in Tennessee. When Mellor gave me a tour of his office, he proudly pointed out an engraved tombstone of appreciation from the casket sellers, which sits in the institute's reception area. IV. The (Other) Rights of Man efending the right of small businessmen to challenge local monopolies may have been necessary and noble, but for the movement it represented a small piece of the puzzle. If Mellor and Bolick and others like them were to transform the Supreme Court's approach to the entire post-New Deal regulatory state -- to ''resurrect the Constitution in Exile,'' as Bolick puts it -- they would have to develop a sophisticated jurisprudential framework. Early on, the movement found its intellectual guru in Richard Epstein. In the words of Michael Greve, Epstein is ''the intellectual patron saint of everybody in this movement.'' Like Bolick, Epstein is too much of a libertarian purist to be a party loyalist. (''Our president is a most inconsistent classical liberal, to be charitable,'' he says. ''He's terrible on trade and a huge spender and not completely candid about the parlous situation Social Security is in.'') But his devotion to -- and influence on -- the Constitution in Exile is unsurpassed. ''Takings: Private Property and the Power of Eminent Domain,'' still in print 20 years after its publication, purports to specify the conditions under which government can rightfully impose regulations and taxes that reduce the value of private property. Drawing on the political philosophy of John Locke, Epstein argues that before the existence of government, individuals in what political theorists call the ''state of nature'' have an inherent right of autonomy, which entitles them to acquire property by dint of their labor and to dispose of it only as they see fit through voluntary transfer of goods. Epstein also maintains that any form of government coercion -- including taxation or other forced transfers of wealth -- can be reconciled with the principles of personal freedom only if it makes individuals at least as well off as they were before the tax or regulation was imposed. Epstein's key insight, as the Constitution in Exile adherents see it, is that economic regulations are just as coercive as other involuntary wealth transfers. He insists that if the government wants to reduce the value of an individual's property -- with zoning restrictions, for example -- it has to compensate him for the lost value. Moving from political theory to constitutional law, Epstein argues that the framers of the United States Constitution recognized these limitations on governmental power in the Takings Clause of the Constitution, which says that ''private property'' cannot be taken for public use ''without just compensation.'' According to Epstein, the Takings Clause prevents the government from redistributing wealth in any form without appropriate compensation and that a proper understanding of the clause calls into question ''many of the heralded reforms and institutions of the 20th century: zoning, rent control, workers' compensation laws, transfer payments,'' as well as ''progressive taxation.'' Liberal governmental reforms could be sustained, Epstein argues, only if the government were to compensate individuals for the lost value of their property or to make everyone better off in exchange for their taxes. ''This simple theory of governance could be expanded to cover all taxes, all regulations, all shift in liability schemes,'' Epstein wrote in an intellectual autobiography. ''It is also the recipe for striking down the New Deal.'' ''Takings'' made Epstein a star on the Republican circuit, and he quickly became a favorite intellectual of Edwin Meese, then Reagan's attorney general. (Perhaps inspired by Epstein's arguments, Meese once announced at a Justice Department conference that a ''revolution'' in economic liberty was a possibility.) In 1986, Meese's office contacted Epstein and asked him to make a scholarly inquiry into Congress's power to regulate interstate commerce. The following year, Epstein published the results of his research in ''The Proper Scope of the Commerce Power'' (the article that Clarence Thomas would apparently later draw on in his Lopez opinion). Epstein argued that before the New Deal, Congress had the power to regulate only the channels of interstate commerce (railroads, for example) but not manufacturing, which doesn't qualify as commerce, or the trade of goods that don't cross state lines. The court, he maintained, was wrong, in its landmark 1942 ruling in Wickard v. Filburn, to allow the federal government to regulate the wheat production of a farmer who grew it for his own consumption. (The government had argued that private consumption was reducing demand for wheat that traveled across state lines.) Though he dutifully noted that his conclusion ''seems radical,'' Epstein called on the court to reverse its error by returning to the more limited pre-New Deal understanding of Congress's power to regulate the economy. From the outset, Epstein's ideas ran into resistance from traditional judicial conservatives. In October 1984, Epstein clashed publicly with Antonin Scalia, his former colleague at the University of Chicago, in a panel discussion convened at the libertarian Cato Institute. Scalia, speaking first before a standing-room-only crowd, defended the view that judges should restrain themselves from overturning legislation in the name of rights or liberties not clearly and expressly enumerated in the Constitution. ''Every era raises its own peculiar threat to constitutional democracy,'' he said. ''The reversal of a half-century of judicial restraint in the economic realm'' -- Epstein's stated project -- ''comes within that category.'' As a traditional federalist, Scalia had his own qualms about the unconstitutionality of unlimited federal power, but he was not in favor of striking down laws in the name of ambiguous and contestable economic rights. Scalia argued that conservatives who had criticized earlier courts, like the Warren court, for liberal judicial activism now faced a ''moment of truth.'' They had to show the courage to reject conservative judicial activism as well. When Epstein heard what Scalia had to say, he threw away his prepared remarks and delivered a spontaneous attack. Freely admitting that he was questioning the conservative ''conventional wisdom,'' Epstein insisted that judges should be much more aggressive in protecting economic liberty. ''There are many blatantly inappropriate statutes that cry out for a quick and easy kill,'' Epstein said, citing minimum-wage laws and other ''legislative regulation of the economy.'' He excoriated the Supreme Court for refusing to strike these laws down. ''One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent,'' he concluded. ''Some movement in the direction of judicial activism is clearly indicated.'' V. Permanent Exile? y 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging. In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of ''the Constitution in Exile.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty -- even if perhaps not in their own lifetimes.'' While not all the leaders of the movement immediately embraced Ginsburg's catch phrase (Edwin Meese says that the phrase Constitution in Exile suggests incorrectly that they have retired from the field of battle), among some legal conservatives it became a rallying cry. The restoration did not occur. The Rehnquist court in recent years has proved more sympathetic to enforcing limits on Congress's power than any court since 1937: between 1995 and 2003, the court struck down 33 federal laws on constitutional grounds -- a higher annual rate than any other Supreme Court in history. But the so-called federalism revolution on the Rehnquist court did not deliver all of what the proponents of the Constitution in Exile had hoped. Every time a lower court appeared to be on the brink of successfully striking down a federal statute with substantial political support, like the Endangered Species Act, the Supreme Court wrote a hedging opinion reassuring the country that the justices intended to challenge Congressional power only at the margins. ''I think we failed,'' Michael Greve said flatly when I asked him about the past decade of Supreme Court litigation. ''There are encouraging signs that with the right strategic moves you can make some headway, until the court looks the principle in the eye and says, 'Oh, my God,' and pulls back.'' He rattled off a series of property-rights cases in which the Supreme Court had declared (in his mocking paraphrase), ''Oh, no, this would be too inconvenient, too constraining for government.'' During the current term, the Supreme Court has heard three cases involving questions of economic liberty that, according to Greve, represent the most significant tests in a decade of the power of the Constitution in Exile movement. Kelo v. New London, which was argued before the court in February, concerned Susette Kelo, a woman who sued the city of New London, Conn., after it used its power of eminent domain to seize 90 acres of property, including her house. The city planned to turn the parcel over to a private developer in order to increase the tax base and revitalize the city. Chip Mellor's organization, the Institute for Justice, represented Kelo, whom the institute's lawyers had sought out because she seemed like a sympathetic victim. Standing before the justices, Kelo's lawyer, Scott G. Bullock, asked the court to reject the claim that as long as the state could point to a plausible public purpose for the taking of private property (like increasing the tax base), it could appropriate people's homes. Justice Sandra Day O'Connor, however, seemed unimpressed by the suggestion that courts should second-guess the economic judgments of legislatures. O'Connor and other justices seemed similarly skeptical during the second case, Lingle v. Chevron, U.S.A., which they heard later that same morning. Lingle involved a challenge to a rent-control regulation in Hawaii. Richard Epstein filed a brief for the Cato Institute that argued that the court should abandon its longstanding presumption that economic regulations are rational and ask instead whether the law, in fact, makes economic sense or is simply a ''naked wealth transfer.'' Randy Barnett, a libertarian scholar at the Boston University School of Law and the Cato Institute, was the plaintiff's lawyer in Ashcroft v. Raich, another key Supreme Court showdown, which was argued before the court last fall. Raich is a challenge to the federal government's attempt to enforce drug laws that conflict with the effort by California (and 10 other states) to allow the use of medical marijuana. Barnett represented Angela Raich, a woman who suffered from cancer that often confined her to a wheelchair but who said she felt much better after being prescribed medical marijuana. The author of a provocative book, ''Restoring the Lost Constitution,'' Barnett argues that courts should evaluate economic regulations with a ''presumption of liberty'' rather than with a presumption of deference. His book identifies a series of regulations that he says the courts should consider constitutionally suspect, from environmental laws to laws forbidding the mere possession of ordinary firearms, therapeutic drugs or pornography. ''The court has not really limited Congress's power very much,'' Barnett says. ''But the fact that it was willing to limit it at all has been an important principle. If it now basically throws in the towel, it will be pretty demoralizing to this whole side.'' In February, a day after the Kelo and Lingle cases were argued before the court, I phoned Epstein and asked him how he thought they had gone. ''I think the exile's going to be a little longer after yesterday,'' he said with a sigh. ''It's a very sad day to watch these guys work.'' Epstein expressed confidence that even if his side loses, the battle for the Constitution in Exile will continue at the state level -- ''the emotional grab of those eminent-domain cases is so strong,'' he said -- but confessed that he had little hope, for now, in the Supreme Court. ''They really have gone back to the extreme 1937 reaction that anything that concerns the economic well-being of this nation is simply a political matter,'' he said. ''If the Constitution is an annoying obstacle, they'll just get it out of their way.'' VI. Packing the Courts f supporters of the Constitution in Exile lose all three cases now before the Supreme Court, what happens next? The general consensus, according to Greve, is that the movement should focus its energies on the appointment of sympathetic judges. ''I think the judicial appointments are what matters most of all,'' Greve says. ''And Bush's renomination of the rejected judges is a way of saying, Let's cram the same judges back in their face. That's intended as a sign that they mean business.'' Three candidates recently renominated by Bush for positions on the federal appellate courts are sympathetic to the ideas of the Constitution in Exile movement. In addition to William Pryor, the former attorney general of Alabama whom Greve praises, there is Janice Rogers Brown, a justice on the California Supreme Court and an outspoken economic libertarian. An African-American and a daughter of sharecroppers, Brown has been promoted by many libertarians as an ideal Supreme Court candidate. Known for her vigorous criticism of the post-New Deal regulatory state, Brown has called 1937, the year the Supreme Court began to uphold the New Deal, ''the triumph of our socialist revolution,'' adding in another speech that ''protection of property was a major casualty of the revolution of 1937.'' She has praised the court's invalidation of maximum-hour and minimum-wage laws in the Progressive era, and at her Senate confirmation hearing in 2003, she referred disparagingly to ''the dichotomy that eventually develops where economic liberty -- property -- is put on a different level than political liberties.'' From Greve's point of view, another sympathizer whom Bush has nominated for a federal appellate judgeship is William G. Myers III, who was the chief lawyer at the Department of the Interior and a lifelong advocate for mining and grazing interests. Democrats in the Senate have expressed special concern about Myers's narrow view of Congress's power to pass environmental regulations: he has criticized the ''fallacious belief that the centralized government can promote environmentalism'' and has denounced the Endangered Species Act and Clean Water Act as ''regulatory excesses.'' He also helped to found Cattlemen Advocating Through Litigation, a conservative group that challenges environmental regulations in court. On March 17, he was the first candidate approved by the Judiciary Committee, on a party line vote. For Democrats in the Senate, a main cause of concern is not only the principles that these judges embrace but also the potential conflicts of interests that their loyalties can create. For example, Douglas Ginsburg, the judge who introduced the phrase Constitution in Exile, serves on the board of a group called the Foundation for Research on Economics and the Environment, or FREE, which favors free-market solutions to environmental problems. As Douglas Kendall of the Community Rights Counsel, an environmental watchdog group, has reported, between 1992 and 2001 Ginsburg took more than a dozen all-expenses-paid trips, mainly to Montana, under FREE's auspices, where he often participated in its judicial-education seminars. In 1999, a constitutional challenge to emission regulations in the Clean Air Act was accepted for argument before Ginsburg. The lawyer who was challenging the regulations on behalf of several industry groups, Edward Warren, had also served on the board of FREE. Ginsburg joined an opinion accepting Warren's argument that the emission regulations were unconstitutional. A dissenting opinion charged the majority with ignoring ''the last half century of Supreme Court jurisprudence,'' and the Supreme Court unanimously reversed the decision two years later in an acerbic opinion written by Scalia. The battle over the ideologies and allegiances of appellate judges is, of course, something of a dress rehearsal for the Supreme Court nomination to come. Greve and his colleague Christopher DeMuth, the president of the American Enterprise Institute, say they are heartened by the judges reportedly on Bush's short list, many of whom they consider broadly sympathetic to their views. ''I think the president and his top staff have shown really good taste in their court of appeals nominations,'' DeMuth told me during a visit to the institute, ''and when the Supreme Court opening comes up, they will be very strongly inclined to nominate people from our side.'' DeMuth was especially enthusiastic about the possible candidacy of Michael W. McConnell, a federal appellate judge in Denver and a former University of Chicago law professor who worked with DeMuth at the Office of Management and Budget in the Reagan administration. Greve explained that McConnell not only has ''impeccable social conservative credentials'' but also will ''give you a vision of federalism that looks like the Constitution we once had, and he's intellectually powerful enough to pull it off on the court.'' Most of the other names on Bush's short list have similar qualities: J. Michael Luttig, a federal appellate judge in Virginia, is a vigorous proponent of the view that some federal environmental laws exceed Congress's powers to regulate interstate commerce; John Roberts, a federal judge in Washington, has also questioned whether some applications of the Endangered Species Act exceed Congress's regulatory powers. The influence of the Constitution in Exile movement on judicial nominations is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.'' VII. America, Deregulated f they win -- if, years from now, the Constitution is brought back from its decades of arguable exile -- and federal environmental laws are struck down, the movement's loyalists do not expect the levels of air and water pollution to rise catastrophically. They are confident that local regulations and private contracts between businesses and neighbors will determine the pollution levels that each region demands. Nor do they expect vulnerable workers to be exploited in sweatshops if labor unions are weakened: they anticipate that entrepreneurial workers in a mobile economy will bargain for the working conditions that their talents deserve. Historic districts, as they see it, will not be eviscerated if zoning laws are scaled back, but they do imagine there will be fewer brownstones and more McMansions. In exchange for these trade-offs, they insist, individual liberty -- the indispensable guarantee of self-fulfillment and happiness -- would flourish far more extensively than it does today. Of course, there would be losers as well as winners in a deregulated market economy, and history provides plenty of reasons to be concerned about the possibility of abuse. Even the relatively modest deregulation of today's increasingly global and fluid U.S. economy may provide something of a cautionary tale. From Enron to illegal trading by mutual funds and bid-rigging in the insurance industry, corporate scandals are keeping consumer advocates like Eliot Spitzer quite busy. America, at the moment, is engaged in an important debate about the relative merits and dangers of the market economy, and the advocates of the Constitution in Exile are aware that they cannot achieve ultimate success without persuading a majority of the American people to embrace their vision. But a political transformation in their favor remains, for the moment, remote, and they appear content, even eager, to turn to the courts to win the victories that are eluding them in the political arena. Advocates of the movement are entirely sincere in their belief that the regulatory state is unconstitutional as well as immoral and that a principled reading of the Constitution requires vigorous enforcement of fundamental limits on state power. Nevertheless, it is a troubling paradox that conservatives, who continue to denounce liberals for using courts to thwart the will of the people in cases involving abortion and gay marriage, now appear to be succumbing to precisely the same temptation. If the lessons of the past 60 years teach us anything, when judges try to short-circuit intensely contested democratic debates, from the New Deal cases to Roe v. Wade, they may provoke a fierce political backlash that sets back the movement they are trying to advance. In this sense, even if the Constitution in Exile movement manages to transform the courts before it has transformed the country, it may find that it has won less than it hoped. Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is at work on a book about democracy and the courts, to be published next year.