"Right in Theory, Wrong in Practice:' Women's Suffrage and the Reconstruction Amendments

Gerard N. Magliocca

This is the title of my new draft paper on SSRN. Here is the Abstract:

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon.

Divine Madness

Andrew Koppelman

When (and How) Should Courts Use AI?

Andrew Coan

 When and How Should Courts Use AI?

(coauthored by Harry Surden)

The debate between constitutional formalists and realists has largely focused on the kinds of controversial questions that come before the Supreme Court. In such cases, there are nearly always plausible legal arguments on both sides. Constitutional formalists think judges should decide between those arguments on the basis of original public meaning—or, at any rate, on the basis of some criterion other than their own moral and political judgment. Constitutional realists doubt this is possible and, at any rate, think the moral and political judgment of judges is at least some of the time normatively superior to the various criteria defended by formalists. The stakes of this debate are very high because the resolution of such cases by the Supreme Court shapes public policy on vitally important questions for the entire country.

In all of these respects, the constitutional questions that come before the Supreme Court are exceptional, rather than normal. The kinds of constitutional questions most often posed in the federal district courts—and quite often in the federal courts of appeals—generally have clear or fairly clear answers that most or all judges applying any mainstream interpretive approach would agree on. The same is true for many, if not most, of the constitutional questions that never make their way to court. Questions arising at the lower levels of the federal judicial system—and completely outside it—also tend to have lower stakes for the legal system as a whole. Decisions of federal district courts have no precedential effect, and the decisions of federal courts of appeals govern particular geographic regions, rather than the whole country.

These courts also have far larger caseloads and far fewer resources to devote to the decision of each case than does the Supreme Court. The same is generally true for government officials and government institutions grappling with constitutional questions outside of court. For all of these reasons, the plausibility and attractiveness of using AI to generate clear legal answers with maximum speed and efficiency is significantly greater and less controversial outside the rarefied realm of the Supreme Court.

For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.”

Simulating AI Constitutional Interpretation

Andrew Coan

(coauthored by Harry Surden)

To investigate how modern AI systems handle constitutional interpretation, we conducted a simple simulation using ChatGPT4 and Claude 3 Opus to decide the questions presented in two highly salient recent Supreme Court decisions, Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard. Our goal was to compare these two tools and test the impact of different framing choices on large language model (LLM) outputs. We also wanted to test the robustness of LLM responses in the face of counterarguments.

We began by posing the precise questions presented in Dobbs and Students for Fair Admissions to ChatGPT4 and Claude3Opus and asking them to decide these cases, without specifying an interpretive method. We then proceeded to ask the models, in separate conversations, to decide the same questions under different interpretive approaches, including a relatively spare and neutral description of original public-meaning originalism and a more fulsome and controversial description of that interpretive approach.

The results were impressively consistent across both models. When we didn't specify an interpretive method, both AI systems adhered to existing Supreme Court precedent, upholding both abortion rights and affirmative action. When instructed to decide as "liberal living constitutionalists" in the tradition of Justice William Brennan, they reached the same results. But when told to apply originalism, both systems reversed course and voted to overrule those same precedents.

Most remarkably, both Claude and ChatGPT reversed themselves in every case when presented with standard counterarguments that any first-year law student could formulate. Experts refer to this phenomenon of LLMs tailoring their outputs to match user preferences as "AI sycophancy," and it raises serious questions about the reliability and malleability of LLMs as constitutional interpreters. More generally, the extent to which human inputs drive LLM outputs suggests that the use of LLMs for constitutional interpretation will implicate substantially the same theoretical issues that today confront human constitutional interpreters.

For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.”

Flat out redistribution of wealth at the Federalist Society

Andrew Koppelman

At a panel at the Federalist Society Lawyers Convention in Washington, DC earlier this month (where I served the familiar role of token lefty), I was hissed by the audience when I called for "flat out redistribution of wealth."  Then I got them to abruptly stop hissing, because they hadn't contemplated all the forms of redistribution that they are, in fact, reconciled and even committed to.  See https://www.youtube.com/watch?v=WJWdfIHgg8M&t=8491s at 1:39.  When I'm in a friendly mood, I say that I speak at the Federalist Society to look for common ground.  When I feel less friendly, I say that I go there hoping to make at least some people in the audience feel ashamed of themselves. But these are in some ways equivalent: I can make you ashamed only if you and I hold ourselves accountable to at least some of the same standards.

What Loper Bright Illustrates About the Incoherence of the Court's Statutory Interpretation Theory

Abbe Gluck

  Loper Bright is a maddening opinion for statutory interpretation afficionados. The Court killed Chevron based on purported theories of statutory-interpretation separation of powers, but those theories do not actually reflect the Court's usual practice, despite the Court's claims. My new piece in the Harvard Journal of Legislation details this argument. Here's an excerpt:

   The opinion reads like a statutory-interpretation manifesto—and suggests that Chevron is being overruled for violating its precepts. The Court proclaims that canons of interpretation must reflect the realities of the congressional drafting process to effectuate legislative intent. It says canons are precedents and that canons are legitimate only to the extent they originated at or before the founding. The Court asserts its view of statutory meaning is originalist, fixed at the time of enactment. It argues the Chevron doctrine was uniquely unworkable.

  Actually, no. Most of the Court’s interpretive canons do not reflect congressional drafting practice, and the Court usually does not view that fact as delegitimizing. Some justices even now expressly disavow interest in congressional practice for purposes of interpretation. This Court has said instead that it is determined to displace any inquiry into what Congress meant or what Congress intended with a new focus on “ordinary meaning” and ordinary people, rather than congressional “insiders.”  And contra Loper Bright, the Supreme Court creates new canons all the time—Chevron was not an outlier in that regard. And despite the stare decisis discussion in the opinion,, the Court does not usually treat canons as precedents or as common law that can be overruled.

  As to Chevron’s “unworkability,” as the Court charged, any unworkability associated with Chevron was due to the Court’s own failure, across all of statutory interpretation, to create any predictable hierarchy of interpretive rules with stare decisis effect and the Court’s decisions to make ambiguity trigger most of the Court’s interpretive doctrines. Chevron shared those features—a lack of interpretive order and an ambiguity threshold—with many other interpretive rules, to be sure, but only because Chevron itself famously turned on the “traditional tools of statutory interpretation,” not because of something inherent to Chevron. The Court itself created this unworkable regime for all statutory questions. Chevron’s demise will not cure it.

  If one takes Loper Bright’s pronouncements about statutory interpretation seriously, most of the Court’s interpretive practices are now invalid because they fail the tests the opinion announces. It does not seem plausible that the Court intended that kind of ripple effect.  A critical part of any inquiry into statutory interpretation is what the prevailing theory tells us about the interbranch relationship. Loper Bright is purportedly an opinion about precisely that, but the Court’s inconsistent pronouncements obscure, rather than clarify, any theory of statutory-interpretation separation of powers. The stakes are especially high, as Loper Bright transfers even more interpretive authority to courts. It is more important than ever that statutory interpretation have a legitimate foundation.

The Law of Conservation of Judgment

Andrew Coan

 (coauthored by Harry Surden)

At least since Jeremy Bentham, legal formalists in the Anglo-American tradition have dreamed of making the law clearer, more precise, and predictable in its application, with the ultimate goal of limiting or eliminating the human subjectivity of judging. The strongest versions of this "legal formalist" project envisioned a system of laws that could be applied by a machine, with perfect reliability and no trace of personal, political, or other bias—and no exercise of the fallible faculty of human judgment.

Enter ChatGPT and other LLMs—a new form of generative artificial intelligence that has received tremendous attention since the public launch of ChatGPT 3.5 in late 2022. In just two short years, these models have improved and proliferated at an astonishing pace. With some important caveats, they are now capable of outperforming most humans at many complex cognitive tasks, including the bar exam and medical licensing exams.

But using AI to interpret the Constitution (or decide other legal questions) does not eliminate the need for normative judgment. It simply shifts those judgments to different stages of the decision-making process. Like matter or energy, judgment in constitutional interpretation can be shifted around, dispersed or concentrated. It might be transferred from one decision-maker or one stage in the decision-making process to another. But when it is squeezed out of one part of the interpretive process, it inevitably pops up somewhere else. We call this the law of conservation of judgment.

For a fuller explanation, you can read our new paper, “Artificial Intelligence and Constitutional Interpretation.”

How AI Learned to Talk

Andrew Coan

(coauthored by Harry Surden)

There is probably no single definition of artificial intelligence that most scholars would agree to. However, one practically useful definition of AI is "using computers to solve problems, make predictions, answer questions, generate creative output, or make automated decisions or actions, on tasks that when done by people, typically require 'intelligence.'" In this view, we can think of AI in terms of particular tasks that we associate with human intelligence, and whether we are able to fully or partially automate these tasks using computers.

Starting in the 1950s and continuing through the 1980s, AI was largely focused upon computer rules and knowledge representation. The goal was to represent different aspects of the world using expert knowledge manually encoded in formal programming languages that computers could easily process. For example, in medicine, such systems aimed to codify the diagnostic knowledge and processes of doctors into formal computer rules, allowing computers to sometimes deduce non-obvious diagnoses. Although this early symbolic AI approach achieved some successes, its limitations became quickly apparent: hand-coded expert rules about law, medicine, or other phenomena were often "brittle" in the sense that they couldn't handle exceptions, non-standard "hybrid" scenarios, discretion, or nuances.

A new AI era began in November 2022 with the release of ChatGPT 3.5 by OpenAI. Much to the surprise of most AI researchers, this was the first AI system that could sensibly react to and analyze just about any textual input or document. ChatGPT was an example of a large language model (LLM), a type of AI natural language processing system that was designed to generate coherent, human-like text. Through "training" on billions of pages of previously written human pages available on the internet and elsewhere—including various legal documents such as federal and state statutes, court decisions, contracts on sites like EDGAR, and legal motions—these AI models learned to understand and generate language in a way that closely simulated human-like writing.

To be clear, ChatGPT 3.5 was not always accurate in its responses or analysis—it suffered from well-known accuracy problems and a tendency to make up facts—a phenomenon known as hallucination. But factual accuracy was not even the biggest technical hurdle for such AI systems prior to that time. Rather, going back to November 2022, LLMs prior to ChatGPT had much more severe limitations—these systems could not even respond sensibly to arbitrary inputs that were too far outside of their training. So, even though ChatGPT made factual and reasoning errors, what astonished AI researchers was that it could analyze and respond to arbitrary text of any kind sensibly at all.

Today, judges and others can use AI models to seek legal analysis and answers about constitutional and statutory interpretation, case law, and nearly any other legal question. Modern AI systems usually respond with coherent, well-reasoned, and persuasive text. We explore the implications in our new article, "Artificial Intelligence and Constitutional Interpretation." 

Gun Regulation When the Fourteenth Amendment was Ratified

Mark Graber

Originalism as practiced by historians, who by "original" mean "authentic," yields different results than originalism as practiced by the Roberts Court, who by "original" seem to mean "novel."  Consider the right to bear arms.

The July 7, 1866, edition of Harper's Weekly, the leading Republican/Union weekly of the Civil War/Reconstruction Era, set out the basic principle underlying gun regulation at the time when the Fourteenth Amendment had just been sent to the states for ratification.  The essay, "The Excise Law" relied heavily on what the author regarding as broadly shared understandings about dangerous weapons when explaining why alcohol could be regulated on the same basis as guns.  The basic principle was “The object of laws is public order, not private morality.”  This principle covered all arms.  Harper's Weekly opined,  

Society is of opinion that gunpowder is so dangerous a commodity that its storage and sale must be regulated by law.  It is idle to say that any man has the right to make gunpowder and sell it, and that society has nothing to do with it.  Society has the right of defending its order and safety, and must judge when they are threatened."

 Guns as well as gunpowder were governed by this standard.  The essay continued,

It would be hard to show that a glass of bad rum is not a weapon as dangerous to society as a revolver in the pocket or a keg of powder in a store.  If society, under certain conditions, may protect itself against these, it may defend in the same way against rum.

"The Excise Law" articulated basic principles of nineteenth century constitutional law (the best analysis is Howard Gillman's THE CONSTITUTION BESIEGED).  No one had a right to threaten the public safety.  When the public safety was threatened, government had the power to regulate.  The only substantial limit on regulation was that if the regulation distinguished between classes of people, the distinction had to be based on real differences between those classes and advance the public interest.  New York could ban children from owing revolvers, but not after the Thirteenth Amendment, African-Americans.

The originalists on the Supreme Court offer an original reading of this history, at least if original is understood as meaning "novel" rather than "authentic."  The justices in New York Rifle and Pistol Association, Inc v. Bruen (2022) and United States v. Rahimi (2024) insist that contemporary regulations are constitutional only Americans in 1791 and, maybe, 1866 regulated the arms in question or a closely analogous regulation was in place in 1791 or, maybe, 1866, no matter how dangerous the arms are recognized to be in 2024.  Republican/Unionists would not have recognized this original interpretation of the constitutional right to bear arms.  If the government thought a weapon, a drink, or anything else, threatened the public, government could regulate.  Perhaps good policy reasons nevertheless exist for recognizing a constitutional right to dangerous weapons that were not thought dangerous in 1866, but such arguments did not occur to Harper's Weekly or, seemingly, other Republicans when the Reconstruction Amendments were framed.

The Procedural Turn’s Faith in Elite Judgment

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Aziz Rana 

Kunal Parker’s The Turn to Process is a wonderful reconstruction of intellectual life in the United States over the twentieth century.  It explores how scholars across fields of law, political science, and economics confronted the modernist crisis of meaning that shaped Euro-American societies.  In particular, the late 1800s and early 1900s saw a breakdown among intellectual and political classes in faith in the underlying foundations of collective life—judgments about the common good, moral certainty, and shared substantive truths.  In this context, scholars increasingly shifted toward an embrace of method as a way both of making sense of social experience and of imagining tools for restitching the social fabric.  As a result, they also re-grounded the legitimacy of their own fields—whether law, political science, or economics—on procedural techniques.  These techniques allowed the scholar to claim an expertise relevant for the ordering of social life regardless of the fracturing of faith in substantive truths.

From Stable Foundations to Dynamic Processes (and Back?)

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Ajay K. Mehrotra

Let me begin with my thanks to Jack Balkin for hosting this online symposium and for inviting me – long time Balkinization reader, first time contributor – to participate in this discussion.  Thanks, of course, also to Kunal Parker for writing such an important and stimulating book. 

I had the good fortune of reviewing portions of The Turn to Process when Kunal presented an overview of the book and the law chapter at an American Bar Foundation/Northwestern University Legal History Colloquium several years ago.  At that event, many of the participating faculty and graduate/law students were excited to read such a capacious history of modern American intellectual life.  Although some found the workshop paper a bit dense, everyone agreed that Kunal had embarked on a bold and ambitious research project. 

The published version of The Turn to Process validates those earlier sentiments.  Kunal has completed a stunning and sweeping history of how a certain segment of American legal, political, and economic thinkers reoriented their respective fields away from stable notions of “truths, ends, and foundations” toward dynamic “methods, techniques, and processes.” In doing so, he makes several contributions to the existing literature by complementing and at times challenging some of the most canonical works in American intellectual history, especially by uncovering the multiple meanings of “the turn to process” and by re-periodizing our conventional understanding of this otherwise familiar story about change over time.

Historicizing History?

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Paul Gowder

It surprised me that the most interesting part of The Turn to Process was the conclusion, in which Parker turns his gaze from law, political science, and economics to history itself—and in effect historicizes the practice of historicizing.

By “the practice of historicizing” I mean what Parker vividly describes as the process where historians try to undermine ideas by placing them in social context. In his apt words: “As historians place object after object in a social-historical context, they render such objects ‘contingent,’ [and] weaken or impair their claims over us[.]” For those of us in other disciplines (and especially the normative and conceptual ones, including law, who lack ready resort to the self-defensive tool of “we’re just doing empirical observation”) the process of experiencing core ideas in one’s field getting subjected to this process of historicizing can be experienced as an annoying bit of disciplinary imperialism, and Parker captures exactly why in his discussion of the historian’s disregard of the truth claims of other fields.

The Turn to Process in Comparative Context

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Amalia D. Kessler

Kunal Parker’s The Turn to Process is a sweeping intellectual history of great ambition. Spanning the period between 1870 and 1970, the book draws on a remarkable depth of erudition to argue that American thought leaders across the domains of law, politics, and economics responded to the challenges of modernism by embracing methods, procedures, and processes. By converting substantive truths into procedural techniques, these scholars were able to establish forms of disciplinary authority that were immune to the corrosive effects of the modernist predilection for subjecting truth to historical and psychological critique. Grand in scope, Parker’s book also shines in its illuminating close readings, which bring to light the surprising parallels between seemingly quite distinct textual traditions. In all these respects, the Turn to Process is an important contribution that promises significantly to reshape the boundaries of scholarly debate across a range of disciplines.

Artificial Intelligence and Constitutional Interpretation

Andrew Coan

Harry Surden and I have posted a new paper to SSRN titled "Artificial Intelligence and Constitutional Interpretation." Here is the abstract:

This Article examines the potential use of large language models (LLMs) like ChatGPT in constitutional interpretation. LLMs are extremely powerful tools, with significant potential to improve the quality and efficiency of constitutional analysis. But their outputs are highly sensitive to variations in prompts and counterarguments, illustrating the importance of human framing choices. As a result, using LLMs for constitutional interpretation implicates substantially the same theoretical issues that confront human interpreters. Two key implications emerge: First, it is crucial to attend carefully to particular use cases and institutional contexts. Relatedly, judges and lawyers must develop "AI literacy" to use LLMs responsibly. Second, there is no avoiding the burdens of judgment. For any given task, LLMs may be better or worse than humans, but the choice of whether and how to use them is itself a judgment requiring normative justification.

You can read the whole thing here. 

What Law Schools Can Do, Part I: Teach Persuasion

David Super

     The great majority of legal academics are appalled at the nation’s verdict last week on former President Donald Trump and the Republican Party.  Despair is natural, and the urge to withdraw is all too tempting.  Many of us enjoy sufficient privilege that we have the choice to abandon meaningful engagement with the nation’s problems and scholarly attention to the world as it is.  Tens of millions of people who stand to suffer under the new regime, however, lack any meaningful exit option. 

     For their sake, but also for our own, I hope we will take this as a signal to engage more, not less.  As it happens, law schools and legal academics are well-positioned to make crucial contributions to advancing justice in this country.  Moreover, much of what our country needs from us is entirely consistent with our roles as legal educators and with norms that law schools should serve, and advance inquiry by, faculty and students of all persuasions.  This is the first of a series of posts suggesting ways in which law teachers and law schools can effectively respond to the current crisis.

The Unbearable Lightness of Process in the Empire of Substance

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

John Fabian Witt

 In a world of earnest but inevitably middling scholarship, Kunal Parker has written a book worth writing, one that is worthy of the effort, redemptive of the genre, and rejuvenating for even the most jaded of weary readers.  The Turn to Process contends that central currents of social thought in the twentieth century adopted a posture of alienation from their subject.  Lawyers, economists, and political scientists, he contends, shifted to thinking not directly about social relations, but instead to thinking about social relations at one remove.  It was the process of human interaction, or the technique and method of managing it, that attracted the attention of social theory and social science, not social relations themselves.  In Parker’s thoughtful reconstruction, the result was a body of social theory beset by an undercurrent of self-estrangement.  The turn to process may have made a bid for hegemony.  But it also came with its own critique, producing a hunger for something more authentic, a bridling at its hypocrisies and its shallow therapeutics. 

            In one sense, the triumph of the procedural in twentieth-century legal theory is a puzzling phenomenon.  In 1980, at what was perhaps the high point for the so-called process school of constitutional law led by John Hart Ely, critics like the liberal Laurence Tribe and the leftist Mark Tushnet objected that process stories in legal theory obscured underlying substantive commitments.  Value-free adjudication based in process, to use Tushnet’s formulation, was impossible; process-perfecting theories, in Tribe’s words, could not banish the fights over substance that had brought them into being.  After all, what could explain the selection of one or another process other than the pursuit of some substantive social project?[1]

Balkinization Symposium on Kunal Parker, The Turn to Process

Guest Blogger

This week at Balkinization we are hosting a symposium on Kunal Parker's new book, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023)

We have assembled a terrific group of commentators, including Marianne Constable (Berkeley), Paul Gowder (Northwestern), Amalia Kessler (Stanford), Ajay K Mehrotra (Northwestern), Aziz Rana (Boston College), and John Witt (Yale).

At the conclusion, Kunal will respond to the commentators.

Trump’s aspiration isn’t Nazi Germany, it’s feudal Germany

Andrew Koppelman

President-elect Donald Trump’s victory has revived the accusation that he is a fascist. Some even fear that he will try to make himself dictator for life.

That notion misunderstands the danger Trump presents. He isn’t aiming or likely to recreate Nazi Germany. Medieval Germany is closer: a collection of unaccountable fiefdoms in which local barons are free to abuse their subjects at will.

I elaborate in a new column at The Hill.

The Brits Let Me Down

Bruce Ackerman

The Brits decided that the American election wasn't sufficiently interesting to warrant around-the-clock coverage -- so the decided to end their broadcast at the stroke of midnight. Since I was supposed to join the conversation at 12:20, they responded to my clicks with an apology -- which I extend to anybody who searched for my comments and found a void. 

My Interview on Times Radio

Guest Blogger

Bruce Ackerman

I’ll be live on air with @CalumAM on @TimesRadio at 12:20am ET reacting to the results from the US election as they roll in… Tune in at times.radio and on YouTube where you can watch all the action too.. https://www.youtube.com/@ListenToTimesRadio 

Shifting Standards for What Constitutes a Dispute

David Super

      As we enter a day of suspense, likely followed by many more of disputes should former President Trump lose, I am struck by the divergence in our nation’s standards for what constitutes an adjudicable dispute.  Our judiciary, long led and now dominated by conservatives, has been steadily narrowing what claims may receive full consideration.  By contrast, the former President and his supporters, also wanting to be seen as conservatives, adamantly insist on greatly broadening the definition of a legitimate dispute.

Just Security pod on historical threats to democracy and January 6

Corey Brettschneider

 I spoke with Tom Joscelyn, a principal author of the House January 6 Report, on the Just Security Podcast about my new book, The Presidents and the People. We talk about historical threats to democracy as well as Trump's attempted self coup. The link is here: https://www.justsecurity.org/104473/presidents-people-book-podcast/

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Corey Brettschneider, Brown University

www.coreybrettschneider.com