BRIGHT IDEAS: David Post on In Search of Jefferson’s Moose

Jeffersons_Moose.jpgToday’s Bright Idea was along time in the making. David Post of Temple University’s Beasley School of Law and the Volokh Conspiracy began this project more than ten years ago. I am excited David chose to write a piece about his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford, 2009), for Bright Ideas for few reasons. The book explores a challenging idea about how we think about the Internet and the way it is governed. In addition, David shares how a lone idea expanded until it became a major project and a book. For anyone thinking about writing a book, David’s piece offers insight regarding how a research agenda is born and grows. As books are becoming a larger part of legal scholarship, David’s tale provides insight about what a commitment writing a book can be. Last, where else can you see what Jefferson, Hamilton, and a moose might have to do with understanding the Internet (honestly, David ties them all together)?

So here’s David on his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace:

DAVID G. POST

The Internet and Jefferson’s Moose

In 1995, I wrote a small essay for the Electronic Frontier Foundation’s then-newfangled “website,” entitled “Jefferson in Cyberspace.” Though I didn’t know it at the time, I was starting a project that would consume much of the next thirteen-plus years of my life. The essay itself wasn’t particularly noteworthy. Its thesis was pretty simple: I suggested that the great opposition between Jefferson and Hamilton – between de-centralizers and centralizers, Republicans and Federalists, between centripetal and centrifugal forces, between chaos at the frontier and order projected from the center – was being played out before our eyes, in real time, reflected in the early battles to regulate and control the emerging Internet. And I (rather glibly) suggested that on this most radically de-centralized of networks – the one that managed to reach every corner of the globe without having anyone in charge – Jefferson and his followers 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 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 – or, at least, the story of the moose. A few years into my reading, I stumbled upon the story (in Daniel Boorstin’s wonderful The Lost World of Thomas Jefferson, if I recall correctly): 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. In a letter to a friend, he called it “an acquisition more precious than you can imagine.”

It’s an amusing little episode, Jefferson at his most lovably eccentric; you may recall it being used for that purpose in the popular film from a few years back, “Jefferson in Paris,” and for years I did the same. As I kept working through these ideas, trying to link up Jefferson’s ideas with some ideas about law on the Internet that my colleagues and I were wrestling with, I’d often begin presentations and talks (and even, on occasion, scholarly papers) with the moose story – just to loosen things up a bit, to get the audience in a good frame of mind. “What was he up to?,” I’d ask. An acquisition “more precious than you can imagine”? Was he serious?

It was just a rhetorical device, and a rhetorical question – at first. Looking back, I see that the inflection point marking the moment that the project actually started taking shape as a book was when I started to take the question seriously myself. Really — what in heaven’s name was he up to?


Asking the question that way helps unlock some of Jefferson’s most interesting, and most revolutionary, ideas, because he was up to a great deal, as it turns out. 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 one component of an argument that 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, where the forces of anarchy and lawlessness would necessarily prevail unless military force were applied. 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 the American 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.

And scaling questions, I began to realize, 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 for purposes of persuasion, 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, because only when they believed that, amazingly enough, was it 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 physical map, will not work – not at global scale, and not on a global network where everyone can communicate instantaneously with everyone else. Many people, I realize, don’t agree, and to win them over I need to marshal the arguments and persuade – which 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.

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David G. Post is the I. Herman Stern Professor of Law at Temple University, and is the author of In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford, 2009). He can be contacted at David.Post@temple.edu, or at www.jeffersonsmoose.org.

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