Thursday, May 15, 2008


It's easy to read too much into the news that Earthlink will pull the plug on its Philadelphia WiFi network, once heralded as the future of internet connectivity. Free marketeers will say that this failed experiment shows the folly of government efforts to pick winning technologies. And they'll be wrong---or at least they'll be overstating their case greatly. In a great many areas, the government provides (either free or on a subsidized basis) the infrastructure on top of which private enterprise runs: roads, sewers, sanitation, fire protection and many other services can be---and at various times in various places have been---privately provided, but national, state and local provision of such services have also been extraordinarily successful.

All technologies eventually become outdated. The Roman aqueducts were a marvel of public engineering. The fact that modern cities typically use underground pipes as a means of obtaining their water hardly shows that the Romans made an unwise investment in aqueducts. Likewise, if, in a future as envisioned by Gene Roddenberry, teleportation replaces ground transportation as the principal means of travel on Earth, that will not mean that the orphaned roads will have been a failure. It will only mean that their time has passed.

The problem with municipal WiFi, by contrast, seems to be that its time never was. Limitations of the technology made it suboptimal. But that need not remain true forever. In the long run, wireless communications---whether bouncing off satellites or terrestrial relay stations---has at least one enormous advantage over any technology that requires hard-wiring: mobility. Just ask anybody under the age of 30 for his or her "home telephone number" for confirmation of this fact: Although land lines still deliver much higher quality sound, Generations Y and Z rely almost exclusively on mobile phones.

The free marketeers have a point, of course: In periods of rapid technological change, neither the government nor any single individual or firm can be counted on to successfully pick winners and losers. The problem with municipal WiFi was not that the government acted but that it acted too soon, before it became clear what the best means for connecting people to the Net was. Ten years from now, however, municipal, statewide or even national wireless internet service provision may be a much better bet.

Posted by Mike Dorf


Sobek said...

Pardon the off-topic, but breaking news is breaking news.

Let's suppose you believe that the Constitution, as a living, breathing document, is designed to adapt to contemporary standards. Let's also suppose that contemporary standards have been made abundantly clear through the overwhelming voice of the people at the ballot box. Under those circumstances, how can four out of seven justices justify overturning the will of the people in the name of contemporary standards?

Obviously I ask the question in terms of today's California Supreme Court decision on gay marriage, but I've wondered the same thing about death penalty cases. Death penalty opponents argue that American society has evolved past such a barbaric practice, and yet voters overwhelming prove, over and over again, that they do in fact favor the death penalty. Some judges still think society has "evolved" past acceptance of the death penalty, contrary to overwhelming evidence.

I guess my question is, how can a right be deemed "fundamental" when it did not exist at the fouding, and the majority of voters oppose it today?

egarber said...

On the California ruling, did I see that all but one judge on the court are Republican appointments? If so, it's interesting that a court dominated by Republican influence would rule this way.

egarber said...

Let's suppose you believe that the Constitution, as a living, breathing document, is designed to adapt to contemporary standards.

Speaking for myself, I don’t think the meaning itself changes because of contemporary standards, outside of those areas that specifically call for it (“cruel and unusual punishment”, maybe). To me, it’s about applying an original principle in an enlightened way, so that in the end, it’s made more perfect.

Under a standard where contemporary thought is the primary driver, you wouldn’t have anything besides basic majority rule; yet the constitution protects minority rights most energetically. Plessy was probably the more “popular” opinion, I would think – but Brown v Board was the truer realization of the principle.

I guess my question is, how can a right be deemed "fundamental" when it did not exist at the fouding, and the majority of voters oppose it today?

I don't put much stock in whether the majority opposes something, because I think the judiciary is uniquely empowered to determine the contemporary application of these principles (with an eye toward protecting minorities). And as long as it errs on the side of the individual (reading through the Ninth), I'm willing to take my chances.

[I'm not trying to rehash any of our previous discussions, btw. Sorry for the babble].

egarber said...

On the substance of Mike's post, I'm thinking that before long, wireless broadband (through cell carriers) will soon cover every square inch of urban and suburban America. So I don't really see why cities need to get involved at all -- outside of maybe subsidizing access for the disadvantaged, schools, etc.

Sobek said...

"...outside of those areas that specifically call for it ('cruel and unusual punishment', maybe)."

But that's the clause that best illustrates my point. Many U.S. Supreme Court Justices (but never a majority) decided that contemporary social standards reject the death penalty categorically, and they were prepared (contrary to all available evidence) to tell America as much. They were proven overwhelmingly wrong when the moratorium was lifted, and the states started passing new death penalty laws.

But those justices did not affirm the constitutionality of the death penalty because they thought, with some modicum of judicial modesty, "hey, maybe we're wrong about what Americans really want." They did it because they couldn't get the votes, plain and simple. The actual contemporary standards were totally irrelevant to Brennan et al. Bill Brennan's only guiding principle was what he would get away with.

Eric, you should find that notion -- that five people can tell you how you need to think about social issues -- every bit as repellent as I do. You have argued compellingly that courts should err on the side of freedom, but what of your freedom to govern yourself? It does not exist whenever it conflicts with the whims of a bare majority of cloistered old men.

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