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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the Tea Party Movement. See his previous OUPblogs here.

On September 12, 2009, tens of thousands of Americans gathered at the national mall for a mass rally, itself a culmination of a 7,000 mile bus tour that had started two weeks before in Sacramento, California, to protest the tax and spending policies of the Obama administration.

Participants of the 2009 Tea Party movement, which was organized just before Tax Day this year, took their inspiration from the Boston Tea Party of 1773, and not, say, 1776, South Carolina’s Ordinance of Nullification of 1832, or the Confederacy of 1861-65, because while rebellion against George III was legitimate and even glorious, rebellion against the government of the United States was ostensibly not. But a closer examination of history reveals the incoherence of the intended historical parallel, and the plausibility of the unintended historical parallels.

The Bostonian colonists in 1773 were objecting to the right of a distant legislature, in which they had no representation, to pass laws (in this case the Tea Act of 1773) affecting their livelihoods. “No taxation without representation” isn’t just a line one finds on a Washington, DC bumper sticker, it is an ancient British constitutional principle to which the American colonists were legitimately appealing. In this sense, the Boston Tea Partiers were still operating within the framework and premises of the British constitution and seeking redress for where its application fell short.

This clearly is not the case for modern Tea Partiers. Not only does every single protester in the modern Tea Party movement have a representative and a senator representing him or her in at the federal level, Washington, DC – the analogue to the foreign metropole (from the Greek “metropolis,” meaning “mother country”) that London was – does not even enjoy such representation! While the Boston Tea Party was a protest against the British government from America, the modern Tea Party is a protest against American government from no less than her capital city.

The appropriate historical parallel then, is not 1773, but 1776, 1832 and even 1861-65, when Americans challenged the authority of their own government. That modern Tea Partiers have 1. rallied to the support of Texas Governor Rick Perry’s expression of sympathy to Texans advocating secession during a Tea Party in April; 2. brought their loaded weapons to town-hall meetings about health-care reform during Summer 2009 in a show of defiance to the president; 3. were, as Rush Limbaugh was, “ecstatic” about Representative Joe Wilson’s (R-SC) indecorous outburst in the middle of President Obama’s speech to a joint session of Congress on September 9, 2009, suggests that the Tea Party movement intends to strike at the very legitimacy of American government. For what is rebellion but the rejection of deliberation and the turn toward politics by any other means — be it secession, physical
interpositioning, or incendiary impudence? And so it is a movement Alexander Hamilton would have scoffed at, but one Thomas Jefferson would have gleefully partook.

The first amendment gives us a right to articulate and seek redress for our grievances against the state, but it is worth stating that there is no first amendment without a constitution, which some of Governor Rick Perry’s constituents appear to be challenging. So on pain of self-contradiction, all Americans must concede that we do not have a constitutional right to revolution. However, this does not mean
that we have not inherited a primal instinct to rebel. Revolution is in our blood, because we are the daughters and sons of revolutionaries. Which is why among those rights the Declaration of Independence held “self-evident,” is “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”
On this point, the Declaration of Independence is fundamentally at odds with the US constitution and its claim to a “more perfect union.” No one has successfully exercised this right since 1789, but there are
sections in the country who have never stopped believing that such a right is any more inalienable than the fact that all men are created equal.

1773 is an oblique way of referencing 1776, which is itself a way of leapfrogging 1789, the year a federation of sovereign states gave way to a more consolidated federal government, to which, like modern Tea Partiers, the author of the Declaration of Independence would feel considerable antipathy as opposition leader to the Federalists and later president, and to which Publius, in contrast, recommended a measure of “veneration” — a sentiment Representative Joe Wilson could not, in the hallowed walls of the US Capitol, bring himself to possess.

David G. Post is the I. Herman Stern Professor of Law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace.  In his new book In Search of Jefferson’s Moose: Notes on the State of Cyberspace, he uses Thomas Jefferson’s views on natural history, law and governance in the New World to illuminate cyberspace’s technological, legal, and social complexities.  In the post below he looks at the implications of a court case in Italy.  Read his previous post here.

In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:

The Italian case relates to a three-minute movie uploaded to Google Video’s Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn’t return calls for this article, argue the video should never have been allowed to be uploaded in the first place.

Google concedes the content caused offense. In a statement the company says: “As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished.”

There’s a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It’s an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.

The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we’ve ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd.  To summarize: Italy can legitimately assert jurisdiction over Google if Google’s conduct is having “significant effects” within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google’s perspective, and the question “With what law does Google have an obligation to comply?”, the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel.  I call this “Jurisdictional Whack-a-Mole.”

“If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be – can legitimately be – applied to you. Your daughter’s junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having “significant effects” in one (or all) of those countries, and . . . the school’s obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

That’s a strange kind of law – law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.

This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I’m hoping the book’s website becomes a focus for some discussion about all this, because I’m pretty certain that we could use more discussion about it.

David G. Post is the I. Herman Stern Professor of Law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace.  In his new book In Search of Jefferson’s Moose: Notes on the State of Cyberspace, he uses Thomas Jefferson’s views on natural history, law and governance in the New World to illuminate cyberspace’s technological, legal, and social complexities.  In the post below he looks at how Jefferson’s moose can guide us towards an understanding of the internet.

In 1995, I wrote a small essay for the Electronic Frontier Foundation’s then-newfangled “website,” entitled “Jefferson in Cyberspace.” The thesis was this: the great opposition between Jefferson and Hamilton – between de-centralizers and centralizers, Republicans and Federalists, between centripetal and centrifugal forces, chaos at the frontier and order projected from the center – was being played out in real time, before our eyes, in and around the early battles to regulate and control the emerging global inter-network – “the Internet.” And, I (rather glibly) suggested, in this most radically de-centralized of networks – the one that managed to span the entire planet without having anyone in charge – Jefferson and the Jeffersonians seemed to have the upper hand.

It was, to be candid, too flip – a blog posting before there were blogs, an interesting little idea without a great deal of deep thinking behind it. But in contrast to many of my interesting little ideas, the more I thought about this one – which I was to do, off-and-on, for the next dozen years or so – the more interesting it became. There really did seem to be something “Jeffersonian” about the Net; it was, somehow, obvious (and many people commented on it at the time), but I couldn’t quite put my finger on exactly what it meant, or what made it so. And the world of Internet law and Internet policy really did seem to be divided between Jeffersonians and Hamiltonians, who came forward with their opposing positions on all the big issues of the day, from the exercise of jurisdiction over Internet conduct to the operation and management of the domain name system, the regulation of Internet anonymity, encryption policy, the scope of free speech protection on the Net . . . .

And then there was Jefferson himself. The more I read of (and by) him, the more interesting he became, too. The variety of his intellectual pursuits (from architecture to mineralogy to zoology, with pretty much everything in between) was so astonishing; he may well have been the only person in history who was, to use Isaiah Berlin’s well-known dichotomy, both a great Hedgehog and a great Fox, propounder of some of history’s greatest Big Ideas and simultaneously one of the planet’s leading experts on cartographic techniques, viniculture, canal-building, plow design, linguistic evolution, paleontology, . . . . What was he up to? What held it all together? What connected the Declaration of Independence to the Big Bone Lick (Ky.) fossils that he pored over in the White House basement? The Summary View of the Rights of British America to the study of Native American languages? The Virginia Statute for Religious Freedom to the design of meteorological measuring devices?

He was on to something, that much was pretty clear; but damned if I could say exactly what it was. And the closer I looked, the harder it got.

Enter, the moose. In 1787, Jefferson had the complete skeleton and carcass (with antlers) of an American moose, 7 feet tall at the shoulders, shipped to him in Paris (where he was serving as the American Minister to the court of Louis XVI), re-assembled, and installed in the entrance hall of his residence.

It’s an amusing little episode, Jefferson at his most lovably eccentric (and you may recall it used for that purpose in the popular film from a few years back, “Jefferson in Paris”). But really – what was he up to? In a letter to a friend, he called the moose “an acquisition more precious than you can imagine.” Was he serious?

Asking the question that way, it turns out, helps unlock some of Jefferson’s most interesting, and most revolutionary, ideas, for the moose stands, as it were, at the hub of a peculiarly Jeffersonian network of ideas and problems and plans. To begin with, there’s the question of scale. Jefferson cared deeply about scale, about the principles – the “laws of nature and nature’s God,” as he put it – governing the growth and size of things, how they get bigger, how they get smaller, and why. The moose was part of an argument Jefferson was having about the relative sizes of New World versus Old World animals. A theory, gaining ground among European scientists, held that animals in the New World were actually smaller – degenerate – versions of their Old World counterparts. Jefferson thought it was hogwash; he devoted much of his book “Notes on the State of Virginia,” published the year before, to a detailed empirical refutation, complete with tables and charts and exhaustive listings of animals large and small. And the moose – the largest of the New World quadrupeds, far larger than any of its Old World relatives – was to be the coup de grace, as it were, the final nail in the coffin.

It all looks a bit ridiculous in retrospect, but it wasn’t ridiculous at the time. The study of animal size and scale not only pointed the way to the development of Darwin’s theory of evolution by natural selection, it helped Jefferson solve one of history’s great scaling problems: the Problem of the Extended Republic. “Montesquieu’s Law,” as it was sometimes known, held that republican government – government by the People, where the governed control the governors – couldn’t scale; it could never be made to work over large territories. Jefferson thought that was hogwash too, and he spent much of his life figuring out how to scale up republican institutions so that they could span a continent. The only thing more incredible than the plans he came up with to get that done is the fact that most of it actually came to pass.

Scaling questions, it turns out, are of the deepest importance for our understanding of the Internet, because the Internet is a phenomenon defined entirely by its scale: the network we call “the Internet” is the one, out of the hundreds of thousands or millions of networks out there, that somehow got to be really, really, big. As someone once put it: It’s not big because it’s the Internet, it’s “the Internet” because it’s big. How did that happen? Why this network and not some other? Can it keep growing and, if so, for how long?
Unless we understand all that, we don’t really understand this new place at all.

But is it, really, a “new place”? I’ve had many, many discussions over the years with my colleagues about that, and it finally hit me: time to bring out the moose! Jefferson didn’t want the moose only to persuade, he wanted it to dazzle (and a moose is, to be honest, a pretty dazzling creature). He wanted viewers to step back and say: “Whoa – we’ve never seen anything like that before!” He wanted to dazzle because he wanted people to believe that there really was a “new world” over there, because if they believed that then they could sweep aside old prejudices and old ways of thinking and begin the process of re-engineering society, and government, and politics. He had plans for the new world, plans that could never be realized until people believed that it was, in fact, a “new” world, and when they believed that, it was, amazingly enough, more likely to become true.

We are going to need some new thinking about society, and government, and politics for the global Net; our old ways of thinking, based on lines projected onto a map, will not work, not at a global scale, and not on a global network where everyone can communicate instantaneously with everyone else. I realize I need to persuade you of that – and I’ve tried to do so, in my book. But I also need to find a moose, something to dazzle the inhabitants of the Old World – not Europe, but the “old,” pre-Internet world of, say, 1980 or 1950 – so that they can see that this really is a new place, with things in it that they have not seen and cannot even imagine. “Whoa – we’ve never seen anything like that before!” Then (but possibly not until then) we can start thinking about how we can, once again, scale up our legal and political institutions and processes, this time to global scale, so that they work better in this new place.

So what does cyberspace’s moose look like? Well, I have some ideas and some candidates – but my publisher told me not to give away the punch line to the book. [Hint: it’s a gigantic compendium of information, available in over 50 languages, put together by hundreds of thousands of anonymous volunteers, without pay, and it serves as the most widely-consulted reference work ever written). I’d like to hear your ideas, though – come join the discussion at http://jeffersonsmoose.org.

Alfred Brophy is the author of Reparations Pro and Con, which talks about visits to slave cemeteries as one type of reparation for slavery. He is also a contributor to Oxford’s African American National Biography and author of Reconstructing the Dreamland: The Tulsa Riot of 1921.  In the article below he looks at the controversy over the right to visit Thomas Jefferson’s grave.

The latest controversy over Thomas Jefferson and Sally Hemings–the enslaved woman whom Jefferson owned and with whom he, presumably, had several children–erupted last summer when Jefferson descendants had a reunion. While the Hemings descendants came to the reunion, they were not permitted to visit Jefferson’s grave, near Jefferson’s home of Monticello. The cemetery is on land owned by some of Jefferson’s lineal descendants and managed by the Monticello Association. (more…)

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by Nick Abadzis First Second 2007 When I heard about this project the first question that crossed my mind was "How do you make the story of the first dog in space interesting?" My second question was "And would young readers even care?" I'll elaborate on the first in a moment, but the answer to the second question is a firm and resounding "probably not" but that has more to do with a general