by Reihan

The following post closely resembles outright hackery. Rest assured, it is very sincere and heartfelt hackery.

The special election to replace the late Tom Lantos is only a few weeks away, and it looks as though former State Senator Jackie Speier has the race sewn up. But a group of free culture enthusiasts, led by Harvard's John Palfrey, are working to persuade Lawrence Lessig to run for the seat. Lessig, a law professor at Stanford, the leading light of the free culture movement, and now a scholar focused on corruption and the fate of democracy, has a highly unusual pedigree. As a kid, he was a teenage Reaganite and hardcore libertarian. Though he later drifted to the left, Lessig's leftism (leftishm?) reflects a Millian sensibility that informs his thinking about the uses and abuses of government and corporate power. More encouraging still, he clerked for Richard Posner and Antonin Scalia. His worldview derives from a serious and lasting engagement with conservative ideas. This accounts in part for his decidedly unconventional tack in Eldred v. Ashcroft, in which he made an originalist case against the scandalous Copyright Term Extension Act of 1998. After losing the case, Lessig offered an insightful mea culpa that's well worth your time.

The image that will always stick in my head comes from an editorial that ran in The New York Times. While the reaction to the Sonny Bono Act itself was almost unanimously negative, the reaction to the court's decision was mixed. The press coverage that attacked the decision did so because it left standing a silly and harmful law. That "grand experiment" that we call "the public domain" is over, the paper said. When I can make light of it, I think, "Honey, I shrunk the Constitution." But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently.

Call him a crazed egomanic, but there's something really remarkable about the way Lessig takes a manifest failure of our constitutional system personally. He's not in public life because he was charming and popular in high school, or to find some lobbying sinecure or because he is convinced the other side constitutes an American Taliban that must be shamed and then destroyed. Rather, Lessig is most concerned with preserving the immune system, the organic intellectual defenses, of a free and open society, something conservatives and liberals alike ought to care about very much.

Of course there are many avenues through which to effect political change, perhaps the most important of which is raising awareness of the issues at stake. Lessig has brilliantly pursued that course. In leaving behind questions surrounding copyright, though, he's recognized that there are deeper problems with the body politic, and deeper questions concerning the vitality and indeed the viability of representative democracy in a society like our own. The time may now have come for Lessig to bring his considerable rhetorical skills and intellectual prowess to the legislative branch.