Set the Default to Open

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Nowhere is the end of linearity more important than our individual rights, and Set the Default to Open takes a new look at this issue from both a legal and technology perspective.

From the introduction to the article in the forthcoming Texas Review of Law and Politics, Volume 14, Issue 1:

Rugged individualism and religious and economic freedom are among the most important factors that have contributed to the growth of U.S. global power and prestige and the welfare of its citizens since the founding of the original colonies. The trajectory of freedom has not always been smooth; however, the United States has remained a powerful example of the benefits and resilience of constitutional democracy. It has weathered a civil war and two world wars, grown from the shores of the Atlantic to the northern reaches of the Pacific, become a global economic and technological powerhouse, and even treated the great wound of slavery.

In the midst of this success the underlying tension in constitutional democracy—the force behind U.S. power and prestige—has the capacity to muddle the national vision. Tension between individual rights and the state is not new. It stretches from antiquity to the Renaissance to the modern world. The U.S. Constitution represents an attempt to codify the social contract between the government and its citizens in an enduring document that supports a functioning government and society.

During the 220 years since its ratification, we have repeatedly revisited the fundamental elements of this social contract. Since the initial Bill of Rights, we have added seventeen amendments to the Constitution, and our constitutional jurisprudence has advanced far beyond the common law we inherited from Great Britain. One case in particular, Plessy v. Ferguson, highlighted the tension between the government and the individual more than any other case in its time. Before Plessy, the Civil War Amendments sought not only to end the slavery that was countenanced in the original Constitution but also to protect the individual rights of all citizens at the State level.  Plessy eviscerated that goal with its abhorrent doctrine of “separate but equal.”  Although the Supreme Court later overturned the “separate but equal”doctrine in Brown v. Board of Education, the tension between group rights and individual rights remained. This tension continues today due to the recent extraordinary growth in the size and power of the federal government in areas as personal as retirement, education, and health care.

The expansion of federal power has been accompanied by accelerating development and use of technology. From curing disease and increasing food quality and supply, to the space shuttle and the iPhone, technology has revolutionized how individuals live and communicate. The Internet, one of the most significant advances in technology, has the capacity to change how the social contract is executed. By enabling speedy and robust communication, it can fundamentally alter the individual’s relationship with the state. Ultimately, the Internet has the capability to perform the traditional governmental function of aggregating individual power. Thus, the Internet holds the potential to facilitate the casteless and classless society described in Justice John Marshall Harlan’s dissent in Plessy.

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