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48 UCLA L. Rev. 1057 (2000-2001)
Copyright's First Amendment

handle is hein.journals/uclalr48 and id is 1073 raw text is: COPYRIGHT'S FIRST AMENDMENT

Lawrence Lessig
My students ask me who the Federalists are. I teach constitutional
law; we read about the Federalists-people like James Madison and
Alexander Hamilton and John Jay, publishing as Publius, pleading with
the citizens of the separate states to form a union by ratifying a strong, cen-
tralizing constitution. But then my students leave my class and are con-
fronted with signs from an organization that lives in many law schools. This
organization too calls itself, the Federalist Society. These Federalists
plead with the citizens of the United States-or at least with law
students-to reform this centralized Union, by pushing back from the
strong, centralized federal government that our nation has become. These
federalists sport Robert Bork, or Alex Kozinski, as their heroes.
So my students ask, what is Federalism? The centralizing, or the
decentralizing? The stronger federal government, or the weaker federal
government? The party of Hamilton? Or the party of Frank Easterbrook?
I answer in a way that I am sure confuses. I say both. For it turns out
that the hardest concept to convey, to law students at least, is this notion
that the president now pushes-the idea of just right. Not too much, not
too little, but just enough. Just right. And, thus, if Federalists at one time
pushed for something more, they are free at another time to push for some-
thing less. If it is a balance of power between federal and state authority
that is right, then Federalists might well need to push in different directions
as the balance changes.
Thus today, the same Federalists might need to push for less central-
ized power. Who could doubt that the framing Federalists would be terri-
fied at the power that has been centralized in one government, anxious
at the weakness of forces that would resist that centralized authority, and
eager to find ways to restore the vitality of the other side? They would not
recognize the government that they created; the presidency they created
would seem to them like the monarchy they resisted; the Congress that they
believed would jealously guard its power would seem, in its eagerness to vest
its authority in an executive branch, cowardly; and the timid judiciary,
that crown of their final days as a political party, barely able to mumble its
*   Professor of Law, Stanford Law School. This Essay is adapted from the Melville B.
Nimmer Memorial Lecture, delivered at UCLA on March 1, 2001.


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