Welcome everyone to Constitution Day 2026, and I’d like to give a special welcome to the first years who’ve been here for now two weeks, and I hope you’ve at least found your way to the bathrooms and and- and so forth. But welcome. I’ve only met a handful of you so far but I look forward to meeting all of you over the course of the next year or- or three years.

Oh, I- I guess this wasn’t really on, so you missed my highly humorous welcome to the first years. So this is Constitution Day. On this day in 1787 the framers in Philadelphia finished their work on a Constitution for the United States, approved it, but not unanimously.

Three of the delegates to Philadelphia refused to sign and several others who had been there had already left and almost certainly would have voted no otherwise. And just because it was… They didn’t actually know it was Constitution Day. They actually thought it was just propose- proposal for a Constitution Day, because it then g- went out to the states for ratification.

And some people I find are not aware of what a close thing it was after that. One may think that the proposal was a pretty good idea and all that, but it was not by any means uncontroversial. And it could easily have been defeated in some of the key states. Virginia, for example, which at that time was the, by far, the largest state i- in the Union if five delegates to the ratifying convention had changed their minds it would have gone down.

And New York, also a very important state, had no intention of ratifying until they were hanging out to dry with the country was gonna get started without them, which would not have been good. And then Alexander Hamilton threatened on behalf of the city of New York to secede from New York if the, they didn’t…

But this was a bitter- bitterly fought campaign. But it was a campaign of ideas in which, both sides said highly sensible and important things and they clashed and they disagreed and then the people came to a- a conclusion. And this sort of sets the tone, I think, for what the Constitution is supposed to be doing for us ever since.

That we, yes, we have a Constitution- but we don’t just go out and treat it as a thing that is done, but we go out and we continue to argue about it. And at our best we say sensible things about it and disagree, and at our best we come to a, a conclusion about it. But it is a process that never ends.

So that’s why universities around the country celebrate Constitution Day as not as something that was done a long time ago, but something that we continue to do now. And it’s in that spirit that the Constitutional Law Center sponsors this lecture and will be sponsoring a number of other talks and events during the course of the year.

It is my, a great pleasure to welcome my good friend Jack Balkin to give the 2026 Constitution Day a lecture. Jack has been a giant in the constitutional field for quite a, quite some time. He’s a professor at the Sterling Professor, isn’t it? Sterling Professor?

Knight Professor. Yes. At at Yale Law School where he’s been since 1994. He has written, some really important books in the field of constitutional theory. Probably the most famous and influential is a book that he calls Living Originalism in which he argues that originalism, which is the idea that the Constitution should be interpreted as it would’ve been understood at the time it was adopted, is actually consistent with the progressive mode of interpretation that often goes under the rubric of living constitutionalism, and he tries to bring those things together.

It’s been… It’s caused a lot of people to think twice about their opposition to originalism, and it’s caused a lot of people to think twice about their commitment to living originalism. So it’s really been an, an important work. Tonight he’s going to be talking about a a set of topics that has been on his mind for a very long time.

He’s talking about technology and constitutional rot, so bringing together his two fields. But, Jack is no Johnny-come-lately to thinking about the impact of technology and technological change on American democracy. He’s been, He was doing this back when I barely even knew what email was.

In the in, in the 1990s, he founded Yale’s center for on informa- the Information Society Project back in 1997. I don’t think very many people yet had any idea how profound the effect on American democracy f- would be from a technological change. Jack was a prophet then, and we will profit now by listening to his thoughts later.

So welcome, Jack.

Thank you, Michael. Thank you Jud, and thank you, Duncan for inviting me here. I’m always delighted to come to Stanford. I have many friends here, and some of them are in the audience, and some of them are hiding in the audience. It’s lovely to see you all. I I’m just really pleased to get to talk to you.

And the reason why I’m especially pleased to come to Stanford is that as, as Michael pointed out, there are two major strands of my work. One strand of my work is constitutional law, constitutional theory, and the other is the law and technology. I started the ISP, the Information Study Project, in 1997 before Google was founded actually.

And and so I’ve been working on these issues w- for almost three decades now. And this is a wonderful opportunity to put these two strands of my work together, and what better place to do it than Stanford Law School? Let’s begin. This… I gave it a provocative title Technology and Constitutional Rot.

But really what this talk is to give you a set of ideas or tools for how to think about the relationship between technological change and the Constitution. Now, there’s a very standard way people generally approach this question, and they say how do we interpret particular clauses of the Constitution in the light of some new technology?

How do we interpret the Fourth Amendment now that we have geofencing warrants? And how do we interpret the First Amendment now that we have artificial intelligence?” This is a very familiar idea. It’s… a lot of ink has been spilled on these kinds of questions, but that’s not what I’m gonna talk about tonight.

I’m gonna talk about a slightly different thing. The deeper question, it seems to me, about the relationship between technology and the Constitution is structural. And the Framers, you should understand, the Framers were all about structure. That’s… most of the debates in the Constitutional Convention are about structure.

And the reason why we have to approach the question in terms of structure is very simple. Technology, in general, changes who has power, how they use it, and it also changes how governments govern. That is, how they identify a problem and how they solve a problem So technological change puts pressure, continuous pressure, on constitutional structure.

It puts pressure on the separation of powers, it puts pressure on checks and balances, and it puts pressure on the system of democratic representation. And so the problem of technology in the Constitution is that the Constitution on the page may stay exactly the same while the Constitution in practice changes dramatically because of changes in technology.

Let me just give you some examples that I’ll go over in more detail during the talk. First of all, technology can increase executive power relative to the power of Congress and the courts. Technology can blur the boundary between governmental power and private power. Technology can transform the public sphere, which is necessary for democratic self-government.

Technology can concentrate economic power and therefore concentrate political power. And then finally, technology can make constitutional protections practically ineffective even though they’re still formally available So the central question that you wanna think about when you think about technology and the Constitution is this: how does democracy change when technologies of power change?

That’s the question I want to talk about today. That’s the question I want you to keep in mind when you think about technology and democracy. Okay, so let me tell you about how this talk is structured. First, I’m gonna talk a little bit about the United States as a democratic republic, and I’m gonna introduce this concept that I coined years ago, called constitutional rot.

Then I’m gonna talk about the particular connection between democracy and technology we have today, and I gave that a name, too. I call it the algorithmic society. And then after that, we’re gonna talk about separation of powers. Then we’re gonna talk about public power and private power. Then we’re gonna talk about the public sphere.

And then after getting you very sad at everything I have to say- … I’m gonna give you a few suggestions for potential reform. Okay, that’s the talk. And then after that, we’ll be singing and dancing. We’ll all get together- … form a chorus line. So democracy and republicanism. So we have, in the United States, a democratic republic.

A c- what is constitutional rot, which is part of the title of the talk? It is a feature of republics. So basically constitutional rot is the process by which a democratic republic becomes less democratic over time, and less republican over time. It becomes less democratic over time because government is less responsive to public opinion and popular will.

It becomes less republican over time because officials stop pursuing the public good and and basically the norms of fair play and cooperation and mutual toleration, which are necessary for a republic to reproduce itself over time, they basically corrode. They fall away. So it becomes less representative and less devoted to the public good, and people in power become less interested in pursuing the public good, and more interested in pursuing their own private good, or the good of very powerful backers who keep them in power.

That’s what happens when a republic corrodes, when it rots Okay. That’s what constitutional rot is, and it is a relative term. Let me explain why. We’re really talking about a declension from a previous period of improvement or stability. Because if you look at the United States at different points, you could say it’s always been rotten. It’s never been fully democratic. It’s never been fully republican,” right? So what we’re really talking about is periods where it’s at a certain level of democracy and republicanism, and then it decays from that. And that has happened several times in our nation’s history. And fortunately, in both cases, there have been periods of renewal.

Before I get to those historical examples, I wanna talk to you about how you know you have constitutional rot. And the way you do is through what I call the four horsemen of constitutional rot. So what are the four horsemen of constitutional rot? They’re the, the harbingers, the things that let you know something is going wrong with the system.

First of all, increasing inequality of wealth. Now, a republic can have inequality of wealth. In fact, most republics do have inequality of wealth. But if the inequalities of wealth get too pronounced, then they undermine republican government, and the reason why is you get concentrated wealth in the hands of a small number of people, and they basically then turn the government to their own private interests.

So in that way, the system becomes less republican, less representative. A second feature of increasing constitutional rot is increasing political polarization. Republics depend on norms of mutual toleration, respect, and cooperation. So in other words in, in a world in which… you may have heard of Carl Schmitt, the the famous German theorist, and he said that ultimately all government is between friends and enemies. That’s a degraded form of a republic, friends and enemies. In a republic, it’s not friends and enemies, it’s friends and future friends. That is, people that are not your allies now but might be your allies at some point because you’re gonna cooperate over something. And a democracy is defined as a place that has elections and the winners the winners take power and the losers concede gracefully, right?

So that you can have a loyal opposition. That’s the nature of a republic and a democracy. But when you get increasing polarization, people stop thinking about each other as potential allies in the future. They start thinking about each other as implacable enemies who must be destroyed at all costs. And at that point, you approach Carl Schmitt’s idea of politics is between friends and enemies. That’s all that’s left, and that is the death of a republic The third feature of constitutional rot, the f- third horseman of the four, is loss of trust. Republics depend upon trust. They depend upon trust between people who are in power, who have to cooperate with each other even if they disagree, and they depend upon trust between the public and the people in power, right?

You have to trust that these people are acting for the public good and not simply to line their own pockets, for example, or their wealthy backers. And finally, you have to have trust in various kinds of institutions, both public and private. Because these institutions of civil society, and also the institutions of government, are actually the, the background that makes a working democracy and republic work.

When trust evaporates, then you get… It’s tied to polarization, people don’t trust each other anymore. They don’t trust the people in power. They think everybody’s in it for themselves, and they don’t trust institutions. They stop trusting science. They stop trusting journalism. They stop trusting universities.

They stop trusting every single institution of civil society. They think they’re all corrupt, they’re all no good. You can’t trust any of them. And when that happens the sinews, if you will, of a republic begin to weaken and give way, and it’s impossible for the republic to reproduce itself over time.

So the third of the concerns is trust The fourth feature of constitutional rot are what my friend Steve Griffin has called policy disasters. And he uses because he’s from Tulane, he uses Hurricane Katrina as his example of a policy disaster. A policy disaster is a, a terrible decision-making by government that convince ordinary people that government is incompetent, indifferent to their needs, or just corrupt.

So in other words, since a republic is based on the idea that government officials hold power for the public good, if they engage in a whole series of disastrous policies then that suggests they don’t really care about you. They care about themselves and their backers, but they don’t care about you.

Or they don’t, and that also leads to the idea that this is not a republic anymore. It undermines the idea of republic. So those are the indicators, the Four Horsemen of constitutional rot. Now, there have been three episodes of constitutional rot in our nation’s history. And remember, it’s a relative term because it’s never been fully democratic, never been fully republican.

The first is the period from, eh, about the 1840s or the 1850s leading up to the Civil War. And why is it a period of constitutional rot? It’s the period in which the slave power, as the Republican Party would call it, essentially captures American politics. And it is a period of heavy and intense polarization, a, a period in which turns out to be like Schmitt’s story of friends and enemies. And then ultimately you have breakdown. The Constitution breaks down and there’s a civil war. The second period of constitutional rot occurs actually in the wake of the Civil War and Reconstruction. It’s what I call the first Gilded Age. And the first Gilded Age is this period… let me tell you a little bit about the first Gilded Age.

Now, of course, this could never happen again, but I just wanna tell you a little bit about it. Just imagine, it’s a period of immense Technological advancement. Amazing changes in technologies of communication and transportation. And this creates enormous fortunes, personal fortunes, that no one had ever seen before.

People are as rich as anyone has ever been in world history, and nobody can believe it. And of course, you know what happens. That’s an enormous inequalities of wealth develop as a result of these technological changes and these changes in and fortune. Huge waves of immigration flood into the United States, causing enormous anxiety and bitterness about the waves of immigrants coming into the United States.

The country is riven by culture wars between Protestants and Catholics, and between native-born Americans and non-native-born Americans. Elections during this period are bitter and very close, and government becomes totally dysfunctional. It’s deeply corrupt. Everyone understands that politics is for sale.

Corruption is widespread and open. And in the world of the public sphere, the cost of producing newspapers collapses. It’s so much cheaper to publish a newspaper than it ever was before. As a result, there is intense competition between newspapers who have to resort to sensationalist stories, some of them not true at all. They just make up things, and it leads to the phrase that we now u- call today yellow journalism, right? All this happens in the first Gilded Age. Thank goodness that could never happen

What is the third example of constitutional rot? It’s the second Gilded Age. That’s the age in which we’re living in today, and it has a lot of similarities, that was my little joke, to the first Gilded Age. Ch- rapid changes in digital technology and artificial intelligence are producing wealth inequality that puts the first Gilded Age in the shadows.

We have a deeply corrupt government in the United States, and everybody knows it. Polarization is at levels not seen since the Civil War. Government is dysfunctional. Elections are bitter and close, and control of Congress just keeps changing sides all the time. Nothing seems to be able to get done, and Congress doesn’t seem to be willing to get anything done.

People lose trust in institutions. They lose trust not only in governmental institutions, but also in institutions of civil society, medicine, public health, science. They lo- and there have been scandals abound in the academy, too. This is a per- You sneezed, it must be true. This is a period of constitutional rot. It’s the second Gilded Age. And of course… we’ll get back to that in a second. But let me just say, there are two lessons that you need to draw from the first Gilded Age that are, I think, are quite relevant to the second Gilded Age. The first lesson is that rapid technological change can sometimes make a path of constitutional rot worse. It doesn’t have to cause it, but it can exacerbate it. It can make it worse. Here’s the second lesson, and it’s the happier lesson Periods of constitutional rot in American history, at least up till now, have been followed by periods of reform and renewal. We know this in the wake of the Civil War, there was Reconstruction and what Lincoln called the new birth of freedom. And after the first Gilded Age, people were so disgusted by Gilded Age corruption that led to reform movements in both parties, by the way, Republican and Democratic, which produced what we now call the Progressive Era, and then later the New Deal. These are periods of reform and renewal of our constitutional system following the corruptions and the polarization. And in fact, polarization begins to decrease right around the turn of the 20th century. And it and it’s interesting that by the time we’re well into the Progressive Era and the New Deal, American politics becomes depolarized so that you have Liberal Democrats and Liberal Republicans and Conservative Democrats and Conservative Republicans. This is not a completely happy story. I can talk about that later in the Q&A. But it’s a period in which what seemed to be permanent polarization actually leads to depolarization. So There’s hope. That’s all I wanna tell you. But I also wanna say that history is not like clockwork. I’m not making a story about technological determinism. Technology creates problems because people decide they wanna use technology in certain ways, and that sh- in turn shapes its future development. Technology offers you opportunities, but you have to take them There’s more than one way to respond to technological change. And the different ways people respond, the different business models that people create, the different institutions and organizations that people create in the wake of technological change take us down different paths.

Now, this is not a claim that technology is neutral. I don’t believe that for a second. Technology always has a politics. But there are democratic and authoritarian uses of technologies, depending on how people design them and how they use them. In the short run, it’s often very difficult to tell what the long-term effects of technology will be.

And often it takes a very long time to figure out how you can produce democratic and emancipatory uses of technology. Often it takes longer to figure out those than the things that are harmful. But even though it’s not always obvious and takes time, it’s something that people do. It’s worth the effort. It takes time, it takes human ingenuity, and it takes effort, much like the production of technology itself. Okay, so we talked about republicanism and democracy, we’ve talked about constitutional rot. Now let’s talk about where we are technologically in history. You probably think we still live in the internet age.

You’re wrong. That was the ’90s. That was, like, the early aughts. We are now in a new world, the algorithmic society. What’s the algorithmic society? The algorithmic society is a larger sort of social formation. It’s a world in which government, markets, and culture are increasingly dependent on data collection, data analysis, algorithms, platforms, robotics, and artificial intelligence.

Within the algorithmic society, you have the algorithmic state, the government. The algorithmic state is what happens when government becomes algorithmic, when it uses artificial intelligence, data analysis, prediction, risk scoring, and automated decision-making in policing, in immigration enforcement, in taxation, in the delivery of government services, in health policy, in national security, and in warfare.

That’s the algorithmic state. A special case of the algorithmic state is what I call the national surveillance state, which is a play on the national security state that developed after World War II. The national surv- surveillance state is a, a subset of these uses of technology, and its characteristic movement is an attempt to move from ex-post punishment To ex ante prediction and prevention in advance.

So we surveil everything, we watch everything, we collect data on everything. Why do we do it? Because we want to predict what people are doing. We wanna predict where terrorists are, for example. We wanna head things off before they can have a chance to occur. That’s the national surveillance state. Now, what is the conceit or aspiration of the algorithmic society, the algorithmic state, and the national surveillance state? What are they all trying to achieve? Very simple. They want practical omniscience. That is, they want to know more, they want to predict more, they want to classify more, and therefore control more. This is an ancient human desire to know all. But now it’s more possible than it’s ever been before in human history, and it’s affected the way that culture works, that markets work, and that government works.

So if you want to understand how technological change affects the Constitution, the question you have to begin with is state capacity. In other words, what can government know now, predict now, automate now, prevent now, and control now that it couldn’t before? And when government can do more things, when state capacity increases, who is made more powerful?

And who is made less powerful in comparison? Those are the questions of the algorithmic state and democracy. So let’s start to answer that question. First, let me begin with a very important structural principle in our Constitution, the separation of powers and the checks and balances between the different branches of government.

So I mentioned what the algorithmic state is. It’s investments in artificial intelligence, surveillance, military technology, predictive systems, administrative databases, risk management, automated benefits systems, things like that, right? You’ll notice something very interesting about this list. Almost everything in this list is part of the executive branch of government.

And indeed, algorithmic government disproportionately empowers the executive branch. Hamilton famously praised the executive’s capacity for decision, activity, secrecy, and dispatch. Digital technologies strengthen every single one of these characteristics and also add capacity as well. Now, Congress has the same formal constitutional powers it’s always had, but it has comparatively weak technological capabilities.

It lacks the executive’s information, expertise. It lacks the executive’s hierarchy and speed and operational infrastructure. And in fact, it lacks lots of information, and it often has to get that information from the executive itself. So that as technology changes, the presidency and the executive branch get more and larger.

We’ve known that, by the way, throughout the 20th century, and it gets more and more powerful, and its state capacity increases. In the meantime, the capacity of Congress doesn’t catch up. It becomes less important, which encourages more executive risk-taking and more executive adventurism. And of course, the cycle continues.

We’ve seen that in the last decade or so. What about the courts? The third branch of government. They face a different problem. First of all they can only decide cases that come before them, so they can’t actually make important decisions about design or about the regulation of technology.

Somebody has to bring a case in front of them, and they actually don’t know that much. Elena Kagan said it in a, in a- a technology case a couple years ago. She said, “It’s not like we’re the nine greatest experts on the internet here.” All right? And she was right. They’re not the nine greatest experts on the internet.

In fact, it… whether or not you think that the Supreme Court is the least dangerous branch, it is the most technologically clueless branch And so that’s a problem as the executive branch gets larger. But it gets worse. The Supreme Court has been its own worst enemy in some ways. It’s developed standing rules, state secrecy doctrines of deference to the executive branch, and the opacity of algorithmic systems, they make judicial oversight increasingly difficult.

It would’ve been difficult anyway, but the Supreme Court has developed all these justiciability doctrines and deference doctrines that basically make it even worse. So what we have, is a system where the formal constitutional powers remain just as they were, but the practical constitutional power has shifted toward the executive.

That’s the first point I wanna make about the algorithmic society and the Constitution. Now, the second thing I wanna talk about is public power and private power. Some of you in the audience may remember that in 1961, in January of 1961, Dwight Eisenhower gave a speech. He was just leaving the presidency, handing it over to JFK, and he gave a famous speech in January of 1961 in which he warned of the rise of a military industrial complex He was worried about the fact that defense contractors were having a disproportionate influence on the federal budget and on Congress in the wake of World War II and the Korean War, and the Cold War.

That was his final message. In the 1970s, people worried that Ross Perot… Anybody remember Ross Perot? He ran for president twice. Anybody know how Ross Perot made his money? Ross Perot made his money by providing proprietary software for governments to process benefits claims. That’s how he made his money, and for that reason, he was called the United States’ first welfare billionaire.

And the claim was that he had too much influence over government because they depended on his data processing systems. Oh, for the ’70s. Once again, such an innocent time. But we have something that is an outgrowth of what Eisenhower was worried about, and even what people were worried about with Ross Perot. It goes actually past it. The algorithmic state that we have now goes beyond simply cushy relationships between defense contractors and members of Congress, and between the fact that the government basically buys software and uses it on its computers. What we have now is something actually a little bit further than that, an outgrowth of that.

Increasingly, in order for the government to be an algorithmic state, it has to depend on private technological infrastructure to govern. Government governs by platform. It governs through the various devices that are provided by these large technology companies. I can give you a whole speech on this. I’ll just go over it very quickly. Let’s take Palantir as an example. Palantir is a wonderful example because Palantir is a global corporation. It does business a lot of different places. It provides data analysis and intelligence services for the United States, and not just the United States, for other countries as well.

And the government works with Palantir in order to identify threats and figure out what’s going on in the world, and basically make decisions about how to prevent certain things. Amazon’s cloud services host a lot of government functions. Oracle is basically the personnel management infrastructure for the government, and of course, they just signed a huge contract with the Defense Department. No-bid contract, I believe. I’m not sure. I think maybe. And then of course, there’s Musk, right? Musk’s companies. He has, he’s really central to space exploration, SpaceX, and his Starlink satellite system is actually crucial to our national security and military operations OpenAI and Anthropic, you probably have been reading in the papers, are providing artificial intelligence for the Defense Department and for national security purposes, and which had led to a kerfuffle between the Trump administration and Anthropic at one point.

And so as a result, what we see is we have a whole group of powerful global technology companies that are now almost essential to government’s everyday functions. They provide cloud computing, they provide data analytics, they provide personnel management systems, they provide satellite communications, they provide artificial intelligence, they provide cybersecurity, and lots of other essential government capabilities. They are essential to how modern governments govern. They’re no longer just government contractors that Eisenhower warned about. Increasingly, they provide the infrastructure through which government itself operates.

And not only that, if I can just focus now on, on a, on some of the platforms, not all of them, some of the platform companies like eBay, for example, or the social media companies. They also act as special purpose sovereigns. By which I mean that they have rules by which they govern their platforms. If you are a member of a platform, you have to abide by their rules, and they create rules, they have dispute resolution systems. eBay has a dispute resolution system. They establish rules. They rank speakers. They regulate who’s visible and who’s not as visible. They exclude users. They structure markets, and they resolve disputes And as a result, they’re like special purpose sovereigns. They’re not… They can’t put people in jail. They can’t start wars. Not directly. But but they have elements of sovereignty, that is the ability to rule and make the rules. That’s what a sovereign is, somebody who rules and makes the rules. And as a result, because you have governments that depend heavily on these infrastructural companies, and because these infrastructural companies have capacities that governments themselves wouldn’t be able to do on their own, you get a very interesting system. It’s a system of mutual co-optation, is the best way to put it. Governments want platforms and technology companies to assist them with surveillance, with national security, with administration, and with regulation. On the other hand, the technology companies want governments to give them contracts, subsidies, favorable regulation, protection from foreign governments, and political influence.

So the governments are trying to co-opt the technology companies to do their bidding for them, and the technology companies are trying to co-opt the government to do its bidding for them. And that’s how public power and oligarchical private power increasingly intermingle in the algorithmic society.

And it’s gotten even more pronounced in the last five years. The symbolism, of course is is the president handing the keys to the government to Elon Musk for the first half of twenty twenty-five. That’s just the symbolism. Even if he hadn’t done that, without Starlink and SpaceX, many features of our national security and space exploration programs don’t work. Without Oracle and without Anthropic and OpenAI, our defense department is much weaker. So essentially, the symbolism of DOGE is just the rancid cherry on top of the sundae

But it’s gotten even more interesting than that. You may have noticed that as part of its industrial policy, this current administration has begun to take a stake in technology companies. And the Trump administration has created a sort of ad hoc system of review for artificial intelligence models. And this is just not on the right, on the left, too. Bernie Sanders wants to take partial control of AI companies to create a sovereign wealth fund. Now, it turns out that the United States Constitution depends on a clear demarcation between public power and private power. It always has. And let me give you just a couple of examples. Take the First Amendment. If it’s the government, it’s not allowed to censor. But if it’s a private party, it has a First Amendment right to editorial judgment. So it matters whether it’s public or private. Let’s take the Fourth Amendment. The Fourth Amendment says the government cannot engage in unreasonable searches and seizures. But if it’s a private company, the entire business model of these companies is based on private surveillance and data collection. So in a world in which we know what’s private and what’s public, this can work. But in a world in which we can no longer tell what’s private and what’s public, we have enormous tension on the constitutional system.

Okay, that’s the next idea. Here’s the next idea, the public sphere. Now, democracy requires more than just regular elections. It requires a functioning public sphere in which knowledge is produced, opinions are formed, and citizens can judge public officials. The algorithmic society creates a kind of a paradox Digital technology has probably produced more freedom of expression than has ever existed in human history. There is more speech, more free speech than they’ve ever had before. At the same time, the same technologies have weakened the institutions that make democratic public opinion possible. And this story has been told many times before, its effects on on the academy, its effects on journalism, its effect on every kind of knowledge institution has been undermined by the way in which the public sphere has developed in the digital era Now, I should just tell you that every change in technology produces a different kind of politics. At the founding, the dominant technology of communication is the newspaper. And indeed, during the period of the ratification, newspapers are basically publishing things, and that’s debates. It’s relatively slow. And because it’s relatively slow, a matter of weeks, a lot of the political dealing is within relatively small areas, that is am- among various elites. And then you have the newspapers, which are slow. Once you have telegraphs and railroads that speeds up politics and who can participate in politics and how politics works. It also speeds up how you engage in war which Lincoln used to his benefit during the Civil War. Once you get radio, it’s possible now for politicians to do something that they’ve never really been able to do before. They can actually draw a personal connection between themselves and a mass audience. FDR used that in his fireside chats. With television, it becomes possible to create a certain kind of performative politics, a politics of spectacle, a politics of media events, something that you really couldn’t have before. In the 19th century, you had these parades. That was a big part of politics. But this is a little different. This is the, the, the politician as television celebrity, as charismatic on television. What kind of politics does the digital world and the algorithmic society produce? How does it change the way in which politics works? And I can sum it up in a slogan that you probably all heard of before. Digital technology creates a politics of attention. That is to say, the business models of digital platforms reward engagement. They reward engagement rather than truth or deliberation or public value. You’ve heard all this before, so I’ll go through it very quickly. But the point I wanna make is that everything in a digital world becomes content, and it’s content whether it’s true or it’s false. It’s content whether it’s scientific discovery or whether it’s gossip. And as a result, this kind of way of communicating flattens out distinctions between what is true and what is false, what is knowledge and what is propaganda. And that’s just the way it works. That’s what… It’s all content, you see It also tends a politics of attention also tends to rely on amplification of outrage, fear, resentment, and conflict because those increase engagement. It tends to weaken journalism. It tends to weaken universities. It tends to weaken science and other knowledge institutions. It tends to create cynicism about expertise and shared reality, and it makes it easier actually for people to harass each other and to manipulate each other and to engage in propaganda.

Now, the point I wanna make before you jump to any conclusion is that, again, I’m not making a deterministic claim here. I’ll give you the first, I’ll give you the first Gilded Age as an example. This is the age of yellow journalism, sensationalism, false stories all over the place. But yet, the Progressive Era reformers took those media, the very same media that had produced yellow journalism, and they used it to expose government corruption. And over the course of a couple decades, what happened is you get the development of twentieth-century media out of a system which a- at its beginning was basically used for purposes of propaganda and stirring up people’s emotions. So the, the point I wanna make here is that the technologies can be used in different ways. They have a politics, they have effects, but they can be used in lots of different ways. Here’s another example. Radio. I told you about FDR. Guess who else used radio to make a direct connection to the people? Hitler, right? Television. You say Richard Nixon, the selling of the president, selling the president like a bar of soap.” But television was crucial to the civil rights movement. It was the only way in which national audience could know about the about the discrimination and the violence that was occurring in the South. So it turned out to be an absolutely essential medium of communication for the purposes of the second reconstruction. Same point I wanna make about today. Don’t give up on our current system of communication and communication. It takes a time to figure out how it works and how to use it, and how to use it to promote various Republican and Democratic ideals. Often, the more harmful ones happen first, but eventually people figure it out. The same technologies can empower democratic movements as well as movements that undermine democracy. The crucial variables are design, ownership, business models, and regulation. Okay. I hope you’re all really happy by now, or I’ve realized this has been a total downer of a talk. But wait, there’s more. How do the things that I’ve just talked about accelerate the four horsemen of constitutional rot that I mentioned at the beginning of this talk? I’ll go through that very quickly. It’s very important to understand, the algorithmic society did not cause our current system of constitutional rot. That began long bego- long before. It began at least four decades ago, and it’s, but it’s ramped up slowly. It’s made it worse. It’s exacerbated it.

Inequality is the first of the horsemen. The digital systems and create network effects, data disadvantages, economies of scale have created enormous concentrations of wealth, and therefore, they’ve created enormous concentrations of political power. That’s what concentrated wealth tends to do. Polarization. Attention-based media tend to reward provocation, outrage, conflict over identity, political performance. Loss of trust. We’ve already talked about that. Loss of trust in public institutions, loss of trust in institutions of knowledge production, but also the opacity of algorithmic decision-making tends to lead people to be deeply suspicious of what is happening because they don’t know what’s going on, and they have no way of figuring out what’s going on. And that also leads to loss of trust, and loss of trust leads to cynicism, and in some cases to despair. And then policy disasters. Let me just say one thing about policy disaster. Automated bureaucracies and degradation of knowledge institutions can produce mistakes and cruelty at scale. While corruption, dysfunction, polarization, and informational disorder make collective problem-solving more difficult. So you can see how all the things I’ve described about the algorithmic society, each of them in its own way has increased the problems of these four harbingers of constitutional rot. And the Supreme Court, I’m sorry to say, has not made things better. It’s been no bargain. It’s in some ways almost acted perversely with respect to the problems that have occurred. So it’s basically deregulated campaign finance, which magnifies the effects of concentrated wealth. Partisan gerrymandering has become easier to do with computers, and that’s the moment at which the Supreme Court decided to retreat from any oversight of partisan gerrymandering Surveillance is more pervasive now than it’s ever been before. It’s the very moment when the Supreme Court decided to say that nobody has standing to challenge the surveillance. Now, you may have heard of the idea of Carolene Products or John Hart Ely’s Democracy and Distrust, the idea that the purpose of a constitutional court is to protect democratic institutions and protect democracy, as when the chips are down, that’s the court’s job one, right? Protect freedom of speech, protect access to the political process, protect voting rights, that sort of thing. But what’s funny about the period in which we are living in now is that constitutional rot has reached the Supreme Court, and now the kind of Supreme Court we currently have is what I would call an anti-Carolene Products court. It’s systematically doing the opposite of what Carolene Products says that courts are supposed to do. It’s making democracy less functional rather than more functional. It’s making things work less well than better. That is also a feature of constitutional rot because when constitutional rot occurs, it doesn’t affect one branch. It affects them all So let me review the bidding. The algorithmic society makes the executive power more powerful and less accountable. It makes private technology companies governing forces that rival and corrupt the state. It merges public power and private power and confuses the difference between them. It concentrates wealth. It degrades the public sphere. It intensifies polarization. It undermines social trust. It makes policy disasters harder to avoid and harder to remedy Now, again, you should not take away from this talk that it is technology by itself that’s causing these problems. It creates opportunities for shortsighted human decision-making that makes the problem worse. And it’s up to human beings to figure out how to reform their institutions to accommodate the changes we’re living through. Which brings me to the last part of my talk, reform. Now, because the problems that I’ve been talking about in this talk are structural, the solution also has to be structural. And the goal is to reform what I would call, and many people call, the small C constitution. The institutions, laws, and political economy, and informational infrastructure that make constitutional democracy work. And we can again take the first Gilded Age as an example. The response to the first Gilded Age, the progressive period leading up to the New Deal, yes, there were four constitutional amendments adopted. That’s true. But there was so much else that was going on. There was experimentation at the state level. There were changes in labor law. There were changes in monetary policy. The Federal Reserve is created during this point. There are all sorts of good government reforms that occur. So it’s not just a story of amending the Constitution, it’s all of these various sub-constitutional reforms that are changing how government governs, how it operates. And also we’re replenishing and renewing various institutions of civil society. It has to start everywhere all at once, really. Not just at the federal level, but especially at the state level, and that was true during this period. So what would you do if you wanted to start to reform and renew the system? Because I have hope that just as we’ve had periods of renewal following previous periods of constitutional rot, we will have another period of renewal. I can’t tell you when it will occur, but the odds are good that this will happen again. So what should we be looking for? I can’t give you a, a list of exactly do this policy or that policy. I’ll just give you things to think about, things to look for, things that you might remember when you hear something on the news. First of all, you have to reform informational capitalism. The United States lacks comprehensive digital privacy protections Which is really remarkable because privacy is the most important, maybe not the most important, but one of the most important civil liberties of our age. I have been arguing for many years for something called information fiduciaries, which is that if you collect an enormous amount of information about people, you have fiduciary duties toward them not to betray them, not to manipulate them, not to deceive them. And I think, in fact, that information fiduciary ideas should be part of any comprehensive digital privacy law. We have to rethink what civil rights are in the context of an algorithmic world where decision-making is made by folks and machines we know nothing about. We have to rethink what due process means in this world. The older models of due process and procedural protections can’t be applied exactly the same way to the particular way in which decisions are made. And we have to think of what a civil right is now. What a civil right was in the 1960s was access to employment, access to housing, access to places of public accommodation. Now you have to think about what a civil right is in this world we also have to replace what we now have a very ad hoc system for the regulation of AI, which is easily corruptible and is probably corrupt, with something much more systematic. Something that in fact can take use of expertise. We also have to regulate the procurement process. This is especially true at the state and local level. So state and local governments are buying algorithmic systems, they have no idea what’s in them. They just make… but you really shouldn’t buy a system that you’re gonna use to make decisions unless you know what’s in it, and you have to make auditing a precondition of the purchase. You have to control procurement. That’s the lever you have basically over how these systems work, especially since you have this merger between public and private power. Procurement is actually one of the most important levers that the government has. The second big thing I would say is that you have to focus on the w- the places where constitutionalism is getting in the way of constitutionalism. Let me explain what I mean. During the progressive era, the Supreme Court elevated the freedom of contract to become the central most important right, and those of you who study constitutional law know that this is a period in which the Supreme Court uses the idea of freedom of contract to strike down legislation. Not all legislation, but a lot of legislation. Today the First Amendment is actually s- serving much of the same function. And it’s a little different though this time, because we’re not gonna get rid of the First Amendment. It’s central to democratic governance. But we have to prevent the First Amendment from becoming a general anti-regulatory device. And so the slogan I would offer, very simple slogan, is, and takes a lot more elaboration, is libertarian within, regulatory without. By r- libertarian within, I mean that you should protect people’s ability to participate in digital platforms and all forms of digital speaking. The First Amendment plays an important role here, but regulable without means that you have to be able to regulate the business models and the industrial structures in which the digital speech occurs. That’s what I mean. Now it’s much more complicated than that, and I’ve written on it, but that’s the idea. Then we have to reconstruct democratic institutions. You have to strengthen congr- Congress’s technological capability and oversight, you have to reform campaign finance, you have to you have to do something with our system of representation, which is broken, and you have to rebuild all the institutions of civil society that are necessary for democratic governance. Here’s where I’ll leave you Technology does not determine our fate. It changes possibilities for exercising power. And the constitutional task that’s before us now, in which I have hope will occur, is to discipline these new technologies of power so that they serve democratic ends and republican ends. The first Gilded Age eventually led to constitutional renewal, and the second Gilded Age, the challenge of the second Gilded Age, is to do that again. Thank you very much

How much time do we have for questions, my friend? 30 minutes. So we have about 30 minutes for questions. There are microphones here at the end of both of these aisles. If you have a question, please come down and s- and be sure to speak into the microphone. That’s way, that way you’ll be on the tape and people will be able to hear you. Very good. And please, when you ask your question, tell me your name and your favorite part of the Constitution. Okay? Very important, it’s Constitution Day. Sir, what is your name and what is your favorite part of the Constitution?

Yes, I can. And what is your favorite part of the Constitution, Tom? We the people. The Preamble is your favorite part? That’s good. See, we got a lot of Preamble fans here. That’s good

That is the second Gilded Age. You ha- this is the inequality of wealth. It is a Gilded Age for some people, but for a very large number of people, it’s harder and harder to afford a house. You have to have a couple jobs. It’s hard to make ends meet. Yeah, that was true in the first Gilded Age, it’s true in the second. Yeah. Additional questions. Hello, who are you?

Because you wanna take things? Because I don’t want the government to take things. Oh, you don’t want the government to take something of yours. All right, very good. It’s not about the compensation. Just compensation. Yes, just compensation. Absolutely.

Yeah It seems to me that some people might say that the increase of technology, just as it’s increased the capacity of the government to have power, it’s also increased the capacity of people to hold the government ac- accountable with things like maybe the exposure of bad actions taken by ICE agents or the abuses of organizations that are taking money from the government. And that this loss of trust is just a natural outcropping of seeing what’s really happening behind the curtain. So my question for you is there a way that we can talk about the necessary cleansing that should happen in institutions in, in positions of power without furthering constitutional rot? Can we look to history as before, or is there a new way that we need to chart forward? That’s a great question. And let me just say that one of the reasons why beco- people become cynical about government is, first of all, they don’t know what’s going on, but when they find out what’s going on, it makes them even more cynical, right? Yeah. But that’s, that’s the beginning of wisdom, and it’s the beginning of renewal. And that if you go back to the first Gilded Age and then the reaction in both parties to it, what is there’s muckraking, honestly. There are people basically telling other people and reporting in in articles and newspaper articles and editorials what exactly was going on and explaining it, and that was the first part of the reform efforts, and those reform efforts went on. So yes, it is a necessary feature of reform that people have to understand exactly what’s happening. And you’just hit upon this point. The same technologies that are undermining our democracy are the technologies that might be used in order to get people mobilized so that they can actually engage in serious reform. So that’s a very good point

Yes. Who are you?

Absolutely. Yeah

Private power. But it seems like if history can be helpful at all there’s instances in which it’s gone a lot further, in which entirely private companies have become so powerful, become de facto sovereigns. Thinking about private colonial charters, but especially private company towns. Yeah. And so I’m wondering if you think that we’re gearing towards– a descriptively gearing towards a path in which private companies, especially private tech companies, might take over that kind of form of the old company towns, a kind of digital company town, become de facto governments. And if so, normatively, what we might want to do about it? W- there is this period in the first part of twenty twenty-five you may remember, in which something like that suspiciously similar to what you’re describing happened. We didn’t become a company town, but basically, they handed the keys to the administrative state to one very, very wealthy man. So yes, this is happening more and more. And indeed as artificial intelligence becomes more and more central to how government governs, the power of artificial intelligence companies is going to become ever greater. That is, if nothing is done. That is to say, there are all sorts of ways in which you could create accountability. Competition law is one. Privacy law is another because data is basically what makes the whole thing run, and control over data is what makes the whole thing run. And procurement, I already mentioned procurement as a lever for regulation. But what has to happen, to go back to the previous question, is people have to become upset about it. They have to actually say, “No, we really need to change this. This is… This can’t stand. This has to change.” And they have to put pressure on their elected representatives to basically do things. And we actually are seeing some of this, although primarily at the state level. The states are passing laws to try to regulate artificial intelligence and technology. Although, as what’s happening at the federal level, of course, has been there’s an enormous drive to preempt all state policies so as to basically cut off these reforms before they have a chance to to work. So th- that’s basically my answer to your question. Yes, it could happen if nothing is done, and therefore, you have to use the various levers that are available to you to bring these particular kinds of concentrations of capital to heel Hello sir, who are you?

And your friends are 1Ls? Yes, my friends are 1Ls. There you are. And what is your favorite part of the Consti- Constitution?

You have something to hide? Yeah. No. No, you just believe in your, you believe in your rights. That’s what-

And Specifically one of the things that I guess I wonder about and worry about is the way in which specifically like agentic AI and those types of systems further and further dilute the agency of individuals potentially within a sort of democratic systems, right? Where it’s like while social media algorithms maybe manipulate the information that people see, artificial intelligence produces– creates an opportunity to remove people’s like agency or decision-making entirely, right? Outsource that entirely. And I guess I wonder one, if you agree with that reading, and then two, if so, like what should we be thinking about in terms of either policy interventions or frameworks specifically or to preserve or in some way uplift the importance of like human agency in the sort of political process given these different technologies? With respect to agentic AI it’s kind of a paradox. On the one hand, it would look like it undermines human agency. In another sense, it actually i-i-increases human agency, right? Because basically you have powers at your disposal that you never had before. The problem with agentic AI is not that it’s a loss of human agency, it’s the danger is the loss of control, which is slightly different, than the loss of agency. I have this article I promised I would write on applying information fiduciary theory to artificial intelligence, and I guess I g- need to write it now. And I think one things that you’d have to talk about is how the idea of being a fiduciary, a, a company that creates the agents basically requires them to basically change or alter or design the technology so that the, the agentic AI is not undermining the person who’s using it. Is not betraying them, is not, manipulating them, is not doing bad things to them. So I think that the information fiduciary’s model is actually important here. By the way, that, that reminds me of something. When we think about privacy, ’cause you mentioned the Fourth Amendment, we sometimes think about privacy as being an issue regarding keeping things from being disclosed or keeping things secret. But in fact, privacy in the digital age is about so much more than that. It’s really the, the sort of central civil liberty that develops in this period, and it’s about control over in- information control over prediction. So if you think about privacy, you think about it in terms of three different periods. There’s pri– the past you, which is what did you do? Where were you? Locational privacy in that. There’s the present you, which is where am I now, and who’s watching me? And then there’s the future you, which is predictions as to what you’re going to do based upon in– data we have about you. And so when we talk about privacy, we’re actually talking about all of these different- kinds of power over the past you, the present you, and the future you. And that’s why privacy is so central to understanding what civil liberties means in this age. So you picked a, a good constitutional provision, my friend. Hello, who are you?

Now you don’t have to tell me your favorite part of the American Constitution unless you have one. If you have a favorite part of the French Constitution, you can tell me that

Absolutely

Very good. So what’s your question today?

wealth and the concentration of the media a famous economist, Esther Duflo, who won the Nobel Prize, did a great work recently on media concentration in France and there is a debate to use antitrust law, Make things work in the medias and the concentration of of the medias between a few hands. And I wanted to know what the situation in the United States and you think antitrust law could be very useful, Yes. So that’s a great, another great question. I’m sad to say things are not going very well right now. Under the current administration of essentially the government has allowed a small number of players to buy up more radio and television stations, and the FCC is run by someone who doesn’t really believe in the First Amendment at all but claims that he does. And so we have a pretty bad techn- telecom policy right now in the United States. You mentioned antitrust law, and I would say, and here we can take a we can take a, a s- a line from the from the Europeans. We should s- instead of thinking just about antitrust law, we should take about the slightly larger category of competition law, and that’s how it’s discussed in Europe, right? And competition law is actually a little broader than antitrust law. It all depends on what you think the purpose of antitrust law are. But competition policy can be interested in a whole bunch of different values than just the way antitrust law has been cashed out in the United States. And one of the concerns, this was actually a concern of the people who created the antitrust laws in the first Gilded Age. One of the concerns of competition law can be the promotion of democratic representation or the promotion of democratic competence, to use a phrase of my colleague, Robert Post. That when we think about how you organize the media you’re not only thinking about whether or not you can make broadcasting cheaper or cable fees cheaper, but whether or not you’re producing a certain kind of environment which im- increases and promotes democratic competence. That’s an issue of co- of competition law, which isn’t often seen as an issue of antitrust law. Unfortunately, as I said before, the current FCC and the current telecommunications policy of the United States, really for some… not just the Trump administration, but for many years, has basically slighted and not paid sufficient attention to these particular values. But I think they have to be part of any serious attempt at reform in telecommunications policy. Thank you

It, it suffuses all. It’s all

Now, and it seems to me that in those earlier periods, it largely is playing the same role, which is just throwing fuel on the fire. Yeah. Except that it’s not throwing fuel on the fire, it’s … Does not block, and that’s the story you told about this court. I’com curious about for the cycle of renewal story, how you see the Supreme Court’s role in those earlier periods, whether it had any positive role to play or the only thing that’s relevant here is that it got out of the way and stopped fueling, throwing fuel on the fire- Yeah whether that has any relevance for the possibility of renewal now. And then also whether or not there are any sort of structural, we might say, barriers to having a court that engages in that sort of renewal. So- … it seems to me that the court more than in earlier periods has a more formalist and technocratic attitude about law- … that might pervade both parties, that the people who are staffing the court are largely without political experience, or to the extent they do have experience, they come from the executive branch- Right might fuel some of these problems. I’m curious how you see the courts not in the cycle of rot aspect but more in the cycle of renewal aspect playing into it.

Yeah. That’s a, a wonderful question, Jud. So let me say a little bit about the history. When you get to… This is all stuff so I’m talking to the audience here. When you get to Reconstruction, the Reconstruction Republicans essentially ignore the Supreme Court and push it around in the from about eighteen sixty onward. First they just ignore the Supreme Court. They ignore Dred Scott. They they a- abolish slavery in the D- in DC, and they abolish slavery in the territories even though the Court said in Dred Scott that they couldn’t. They passed the eighteen sixty-six Civil Rights Act, which makes all Black people citizens even though the Supreme Court said that you couldn’t do that. So they just ignore it. And then they manipulate the size of the Supreme Court to prevent Andrew Johnson from getting any appointments and then they increase it back to its current size when Ulysses S. Grant becomes president. So they really don’t give the Supreme Court much respect during this period. And the Supreme Court does a whole bunch of things that you know… It’s its behavior during this period is up and down, it would take a whole lecture to talk about the Supreme Court during this period. And then, of course, as we get into the Gilded Age, as you well know, the Supreme Court do- isn’t very helpful. There are a few things it does. Munn versus Illinois is an important case. But a lot of what it does is not particularly helpful. But this, you may notice that during this talk I said very little about the Supreme Court. I did talk about it. I said they’re part of the problem, not the solution, and there’s a reason for that. And it’s that actually the Supreme Court is not the most important part of the American government when it comes to these periods of renewal it just isn’t. It renewal tends to happen despite the Supreme Court or routing around the Supreme Court, and the Supreme Court tends to catch up later, and part of the reason for that has to do with the fact that that events in American politics, including rot, tend to happen later to the judicial system because of the turnover and because of life tenure. So in other words, they, I always l- say that they’re like the husband in the French forest, always the last to know. A- and a- and so the, they’re, when rot occurs it’s, that’s the last institution that gets taken over because of the, of life tenure. And so when we see these things what we see is that the Supreme Court is not a major player. It actually causes problems but it’s basic… A- and so that’s the Reconstruction period. In the Gilded Age first Gilded Age Progressive Era period, most people don’t know this, but there’s actually multiple periods that we collectively call the Lochner era. There’s the period from about 1897 till, eh, I’d say about 1910 or so, and then the court kind of takes its foot off the pedal for about a decade. And they almost, they effectively overrule Lochner i- in a case out of Oregon and everybody knows they’ve done it. And then when Harding takes over, he appoints four justices, and then the Supreme Court puts its foot back on the pedal, and, that’s the second part of the Lochner era. So it’s their behavior during this period is not uniform. It’s very complicated. And even the, that court gets a kind of a bad rap. It gets a bad press because it actually doesn’t do as much as people say it did in hindsight. So on- but once again, most of the renewal occurs outside of it or around it. A- and this last period, which is the period everybody remembers, is the fight with FDR, right? S- but that’s a relatively concentrated period, and then of course, as you all know the story, FDR finally gets a, an appointment to the Supreme Court in 1937, and then basically the Court just gives way. So m- my suspicion, and this is, again, it’s possible that it’ll be different this time. It’s possible because people live longer. They don’t leave the Court, and so that the lag is just longer. It’s possible that, in fact, the Court will be a greater impediment to renewal than it was in the last two episodes. I don’t know. Nobody knows the future. But what you say makes a lot of sense to me

Hello, Nicholas. And what is your favorite part of the Constitution?

Very good. You’re not packing today, are you? Okay. I just wanna know. Just wanna know

Yeah, Elon can’t hear you, so could you just speak up so he can hear you? Okay, mic check. Yeah I’m curious. Elon has an interesting point. He talks about the ossification of a society and how laws can just pile up and pile up- … and because there is no garbage collection, it just contributes to another form of c- constitutional rot, I guess- Right You could make the argument. And you’re bringing in this new angle of, t- technological reform as well, but it can… And you also mentioned, that you have this, data exhaust that people, contribute to, the past, the present, and the future. And it seems like, people, especially in San Francisco and in, and very interesting scenes in Berkeley are th- starting to think about, digital immortality- and using your, the data that you produced about yourself to you know, have a presence for however long you’d like after you die. I’m curious if you see this as kind of the next step in another form of rot where a lot of, congressional members of government are very old and, they’ve tri- tried to be career politicians for a very long time and hold onto power. It seems like this could be another potential issue where, we just have, digital immortality of a, an individual that just because they’re on the internet could have influence long after they’re gone. So there are three ideas in your question, and I wanna talk about each of them separately. The first idea is noticing that when you… When people notice that things are not working, when, garbage piles up, et cetera, society ossifies, people notice this on both the left and the right. They don’t always point to exactly the same things, but i- it’s surprising how similar the, the rhetoric is on both sides of the political spectrum. Everybody understands that things are not working well. Everybody understands that the system has become dysfunctional, right? I’m talking from my particular political perspective, but when I listen to people who don’t share my political perspective, I see it in their discussions too. They see there’s something deeply wrong. The second thing you said was about the interest in immortality, and this gives me an opportunity to make a point which I don’t think I’ve committed to print, but I really need to. When you have the period of the first Gilded Age, you get these incredibly wild ideologies developing among both the the, the sort of titans of industry and also the lawyers supporting them, and also their sort of court intellectuals, which now all collectively go by the name of social Darwinism, but there’s all this other stuff that’s going on too, right? It’s just crazy stuff. People are, eat the poor. All that kind of stuff is going on during this period. I’m exaggerating. But and it… I think there’s a relationship between what court intellectuals are willing to say during a period of c- of rot. Fitzhugh during the 18, 1840s, 1850s wrote Cannibals All, where he’s defending slavery. So you get court intellectuals doing all sorts of crazy stuff. So I understand the whole focus on this, on the kinds of ideologies that are developing now, especially here on the West Coast, as being a sort of symptom of this kind of connection between the concentration of wealth and what intellectuals associated with it are doing. There’s probably much more to say about it, and it’s different each time, but I think that’s what’s going on. The third thing is gerontocracy. My colleague Sam Moyn, has just written a book on this I am more optimistic than Sam is that this thing is gonna resolve itself. Not that everybody’s gonna die, but rather that what you’re probably gonna see… I think it’s tied to the idea that things aren’t functioning, that is that you have an older generation of leaders and they have to give way to a new generation of leaders. But I am somewhat optimistic that is gonna happen. M- maybe I’m being entirely too Pollyannish about it, but I think that the kind of gerontocracy concerns that Sam has which he talks about in his book, I think they are actually the least of the problems we face today, and I think they will be resolved, actually maybe more quickly than some of the other problems that we’re facing. Just to add on to that- Oh, you have one more thing about that? Yeah, go ahead. Yeah. It’s very interesting you say that because you point to the Supreme Court as probably the least technologically aware and is probably a main re- major reason why we’re in this situation. How do you think this would solve itself in that case? Remember, the Supreme Court takes very few cases about technology. Most of the cases are decided by judges in the lower courts and in the state courts. And I don’t… And again to go back to what I was saying with Judd I generally think that when you have renewal, the Supreme Court doesn’t help very much, but basically people just route around it. If that’s, if the if the past is prologue, that’s probably what’s gonna happen again. Of course I could be wrong about all of this. So there you are. Thank you. Hello. Who are you?

Who are you, by the way? Oh, my name is Andreas. Andreas, yes.

First, Fourth, and Fourteenth Amendments. Yeah. I love to- You like ones and fours is what you like. Yeah, exactly. If we had 144th Amendment, you would be in heaven

Yes

So knowing that these civil liberties are systematically being undermined you mentioned something at the end of your talk about imagining new civil liberties I was hoping you could expand on that. What do you think might be the most pressing one if there should be a new one? I, again, this is something that I don’t have the blueprint for. I can only give you very… I can gesture at suggestions. When you think about, let’s just, le- let me ask you, when you think about the greatest threats to your life today, the things that really impede you from being the person you wanna be and doing the things you wanna do, how are they interact with technology? What would you say they are?

The government could always come get you, but they’re gonna get you in a different way

So I would say that, again, I’m just… Again, this is just very the beginning of an answer. You’re worried about the predictive power of the government, and it’s being abused in ways that will harm you in old-fashioned ways. So what you want is a right against the government abu- abusing its predictive technologies and its predictive power And we would call that now privacy, although privacy now co- comprehends so many different things, as I said before. It’s an element of what we now call privacy. But really, you’re identifying something that didn’t really exist in the same degree until very recently, right? The government’s incredible increase in predictive power, and its ability to make those predictions work and affect you. And that’s the kind of new civil liberty we might have to imagine. There you are. Hello, who are you? Hi, my name is Steve. My favorite parts of the Constitution are the impeachment clauses. Because the sign of rationality is being able to recognize making a mistake and corre- taking corrective action- Yeah … if it’s called for. How do you feel about the emolument clauses, by the way? While we’re on the- I think it goes hand-in-hand with the impeachment. Yeah. Okay. I just, I thought you might say that. So what’s your question? Okay. You started out your talk with a reference to Eisenhower and the military industrial complex, but- … and I apologize, I had to step out for a call briefly, but I didn’t hear much in your talk about undeclared wars as being part of constitutional rot. And, a lot of people would say that, like the book about the greatest generation, that World War II was the last honest war because we were attacked and- … Congress declared war. And then since then you have Korea and Vietnam and now with technology, you can take out a person around the world and presidents have done that. And, and- Yeah … isn’t that a part of constitutional rot? And, Yeah … what can we do in terms of reining in the technology or amping up the democracy? Yeah, that’s a great question. So let me just say, I didn’t talk about that. I mentioned war in passing, but let’s talk about that in a little bit more detail. So it turns out to be the case… now of course, we have the extremis, in w- case in which the president just decides he’s gonna start a war. He doesn’t even bother with any of the niceties. He doesn’t figure anybody’s gonna stop him, so he just does it. Whereas previous precedents, presidents at least would get, their lawyers to tell stories about how what they were doing was perfectly consistent with either the United Nation Treaty, that was Truman, or or the Gulf of Tonkin Resolution, that was Johnson, or the AUMF, that was Bush et cetera. You get it. At least they went through the motions of basically doing this. Whereas this current president just says, “Ah, I’m gonna start a war. Stop me. See if you can stop me.” And so this is just, the bitter end of this thing. There is a story to tell- And it’s not just a story about our current technological system. There’s a story to tell about increases in technological capacity following World War II, right? And of the increasing power of the executive to wage war and conduct secret wars, which is part of what you were asking. And that’s a story that predates the digital era. But you can tie it, you can actually tie it to the way in which the technologies of war changed, and intelligence changed as well. And it is actually a story of rot. It’s a very long story, and many decades in which the fact that the technologies, how you went to war and what you did in war and what you called war and what you didn’t call war, those things changed over the decades and the other institutions of government didn’t respond appropriately. And that would be a very long progression of what I would call constitutional rot. And indeed, again, I have not mentioned the Roman Republic once in this talk but here’s my chance. The shift, from Marius and then to Sulla and then to Pompey and then to Caesar, which ultimately leads to the death of the Roman Republic, is a story about the changing organization of the Roman military and the increasing inability of the Senate to stand up to it. And in each stage you can say we yeah, he had to do that, and Sulla had to do what he did and, Pompey, what a great guy. He was Pompey the Great.” But then you finally get to Caesar, and then it’s all over with the shouting. So that’s the analogy. And by the way, just, Jack Rakove is here, so he’s gonna correct me. But when the framers are thinking about republics and the dangers to republics and the dangers of demagogues, there are two demagogues they’re thinking about. One is Cromwell, but the other is Caesar. And the Roman Republic is very much on their minds I was not going to bring tonight to a halt until Jack finally got to the Roman Republic. But now that he’s done that, regrettably I have to put an end to the questions, which have been great. First let me ask everyone to join me in in thanking Jack for a very- … stimulating talk

And second, I want to invite everyone to continue this conversation outside at a reception in the Cooley Courtyard. And Jack I trust you’ll be there and and engage more- Will there be food? What I want … There will be food and drink. My fav- By, by the way, I’m Michael, and my favorite cons- part of the Constitution is the repeal of prohibition. And we’ll take advantage of that out in the Cooley Courtyard. Jack, I recommend that you make a rapid escape so that you can get out there and not get ambushed up here. And then the final thing is I do want invite everyone to to watch for future Constitutional Law Center events. The next one of which will be October 13th, and with Jonathan Gienapp, who is sitting over there giving a a, a talk about a very interesting bit of constitutional history that he uncovered in the last few months. So please join us then, and again, thank you, Jack, for an extremely depressing and exhilarating-