Are we Experiencing a Constitutional Revolution?

Mark Graber

Some thoughts on constitutional revolutions in American history, whether Americans are experiencing a constitutional revolution at present, and what would have to happen for the attempted Trump constitutional revolution to become entrenched. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7461620

Response to Our Readers

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Mark Tushnet and Bojan Bugaric

As several contributors to this book review symposium emphasize, conventions are important elements in institutional designs that contribute to social and political stability. With that in mind we follow the convention of thanking all the contributors for the attention and seriousness they devoted to our book. We add one thing: a recognition that review symposia like this one are especially well-suited to the blog format even as the long-form blog has gone into serious decline. Coordinating a symposium via Substack would be difficult, even putting aside questions about paywalls and the like; doing so on Bluesky would be impossible; and maintaining a podcast or newsletter, whether paid or not, would require a different level of commitment than does maintaining a blog. So our thanks go to Jack Balkin as well for his continuing support for the long-form blog.

We begin by noting that many contributors (alphabetically, Gamboa, Levinson, Nicola, Ragone, O’Cinneide) correctly pick up on something we think lies at the base of our analysis—an insistence that context matters. So, for example, our expressed preference for a “thin” constitution (however defined) can be displaced by thicker ones when circumstances require: an empowered constitutional court—one of Loughlin’s bugbears in the context with which he is concerned—might be appropriate when a nation is in the incipient stages of democratic decline, though as Levinson notes, we are skeptical about the proposition that institution designers will be able to create such a court that will be effective when needed (rather than captured too quickly) and will retreat when the exigency has passed. Here, too, though, context matters. Gamboa and Graber in different ways ask us—the community of scholars to whom our book is addressed—to consider the politics that might produce the Goldilocks solution. We have almost nothing to say about that in our book, apart from the fact that we advocate a greater role for politics, not law, aiming to provide solutions to accumulated problems of neoliberal politics of the last four decades, which make various populist responses thrive, and welcome further scholarly attention to that question, already addressed in other disciplines like political economy, sociology and political science.

Taming the 1960s

Gerard N. Magliocca

My draft paper on the Senate Subcommittee on Constitutional Amendments (aka the Bayh Subcommittee) is now available. Comments are most welcome.

Stuck in the Middle With You: The Constitution Between Regimes

JB

I have uploaded my latest essay, Stuck in the Middle With You: The Constitution Between Regimes, to SSRN. Here is the abstract:

This essay uses the theories developed in my my 2020 book, The Cycles of Constitutional Time,  to explain the current moment in American democracy (the fall of 2026).

The United States is living through a constitutional interregnum: the Reagan regime has exhausted itself, but no successor has yet emerged. The country is experiencing “regime suspension,” in which the two major parties possess different but incomplete resources for political reconstruction. Republicans have a powerful movement infrastructure but no demonstrated durable national majority. Democrats remain electorally competitive but are still primarily a coalition of interest groups and lack a comparably coherent social movement capable of organizing a new constitutional regime.

The situation is made worse by severe polarization and constitutional rot—the process by which a republic becomes less democratic, less responsive to popular will, and less oriented toward the public good. Donald Trump has attempted to compensate for the political resources he lacks through a strategy of “reconstruction through corruption”: expanding presidential power, installing loyalists and sycophants, weakening institutions, selectively enforcing the law, intimidating opponents, rewarding cronies, and converting public authority into an instrument of personal and oligarchical power.

The Roberts Court has repeatedly facilitated Trump’s efforts. That is not because the Court actively supports Trump, but because the Court’s conservative majority is realizing long-standing conservative legal commitments to increasing presidential power, deregulating campaign finance, weakening voting-rights protections, narrowing anti-corruption laws, and defanging the administrative state. These ideological projects, combined with the Court’s desire to avoid direct confrontation with Trump, have created an opportunity structure for executive aggrandizement.

Constitutional rot creates a widening gap between constitutional institutions and the constitutional values these institutions were designed to serve. The essay explains how polarization makes rot difficult to remedy, and why advanced rot makes constitutional crises more thinkable and more likely.

The essay identifies several possible directions the constitutional system could take: a new Republican or Democratic led regime, a prolonged period of preemptive politics, competitive authoritarianism, constitutional breakdown, or the development of anti-corruption reform movements in both parties, as occurred during the Progressive Era. The most plausible democratic path resembles the Progressive Era: state and local experimentation, cross-party reform coalitions, institutional rebuilding, and a shift from culture-war issues toward questions of affordability, wealth inequality, concentrated economic power, industrial policy, and class. Renewal remains possible, but it is neither guaranteed nor imminent; it requires sustained mobilization, constitutional and institutional reform, protection of vulnerable groups, and a long time horizon. It took many decades for constitutional rot to develop in the United States. Freeing ourselves from it may take many more.

Constitutional Law and “Common Sense” Gun and Drug Regulation

David Pozen

For the Supreme Court Review, Joseph Blocher and I have a new paper that diagnoses a mismatch between the growing scholarly consensus on gun and drug regulation (generally favoring pragmatic approaches focused on reducing harms) and the constitutional rights doctrine on these subjects (generally either maximalist or minimalist). The Court’s most recent Second Amendment decisions are the point of departure. Here is the abstract for The Excluded Middle of Law: Constitutional Drivers of Extremism in Gun and Drug Policy, a draft of which is now up on SSRN:

American drug and gun regulation is difficult to defend from almost any perspective. Federal and state laws heap criminal penalties on a small subset of users, burden many others whose possession poses no direct threat to third parties, and yet fail to prevent staggering social harms. To address these pathologies, a long line of scholars and advocates has called for something in between punitive prohibitionism and laissez-faire capitalism: grudging toleration, harm reduction, liberty balancing, community-based alternatives, and so on. Among the forces pushing policy away from these pragmatic approaches, however, is U.S. constitutional doctrine.

Using the Supreme Court’s decisions in United States v. Hemani and Wolford v. Lopez as a jumping-off point, this Article explores the role of constitutional law in driving drug and gun policy to the extremes. Hemani holds out hope for limited forms of pragmatism to sneak into Second Amendment analysis through the side door. But in nearly inverse ways, the Article argues, the Court’s jurisprudence has complicated efforts in both fields to reach a more effective and humane regulatory middle ground.

Constitutionalism and Its Contents

Guest Blogger

Letting Go of Faith in Constitutionalism

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Colm O’Cinneide

Introduction - Keeping the Constitutional Flame?

On the very first page of Constitutionalism and its Discontents, Mark Tushnet and Bojan Bugaric provide a wonderfully succinct summary of constitutionalism’s current ‘discontents’. Across the democratic world, constitutional controls are crumbling, exposed as lacking in effectiveness, and/or becoming the focus of sustained and divisive political controversy. As Mark and Bojan point this, the latter is a particularly corrosive problem: ‘it runs up against one of the hopes held out by constitutionalism’s proponents, that it provides a neutral framework for the resolution of partisan conflicts’ (p. 1). In general, the constitutionalist cart seems to be overloaded: courts and other guarantor institutions are constantly accused of both over- and under-reaching, even as their authority is increasingly contested.

And yet faith in constitutionalism persists. If anything, it tends to be professed with extra vigour and devotion. We hear calls all the time for renewed fidelity to rule of law, separation of powers and other core constitutional principles - and for associated mechanisms such as judicial review to be reinforced and strengthened in the face of Trumpism, Orbanism etc. (The USA is perhaps something of an outlier here: looking in from the outside, the Supreme Court’s legitimacy crisis seems to have dampened faith in constitutionalism to a degree that is (yet?) to be matched elsewhere in the democratic world.)

Is this devotion justified? Is the solution to the crisis of constitutionalism really to double down on constitutionalism? Mark and Bojan say no. They have come to cast cold water on the fervour of the constitutionally devout; to demonstrate the hollowness of constitutional doctrine and the infeasibility of the hopes invested in it; and to disenchant the true believers. Revivalism, like that offered up in recent work by Fishkin and Forbath, does not interest them. Instead, they argue that we should abandon belief in the virtues of embedded constitutionalism - and liberate political contestation from the dead hand of democracy-constraining constitutionalist legalism.

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

One irony about the new proposed list of census questions for 2030 is that the only question that may be constitutionally required as an original matter is not included. That question would ask Americans for information pertaining to Section 2 of the Fourteenth Amendment. As I laid in out in a paper published before the 2020 census, our current apportionment process is unconstitutional. Maybe this time around one or more states will raise that claim at the census stage or following the next reapportionment.

Discontent with Constitutionalism and Its Discontents

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Martin Loughlin

My thoughts on Constitutionalism and Its Discontents, the latest publication from Professors Tushnet and Bugaric, must be situated in the context of their earlier book, Power to the People. That book, I argued in Balkinization, had failed to give a cogent answer to the basic question it sought to address, namely, whether populism is inconsistent with constitutionalism. And the reason was that the authors had not provided a clear statement of what those two key terms mean. With respect to constitutionalism, they sought to avoid controversy by presenting what they called a ‘thin’ account which could operate as ‘a least common denominator’. But this account, I suggested, was not only as contentious as so-called ‘thick’ accounts; it was also skewed in such a way that it would not be accepted by constitutionalism’s most fervent advocates. Their thin account could not differentiate between those who adhere to constitutionalism, those who reject constitutionalism but uphold constitutional democracy, and those who merely acknowledge the value of constitutional government.

In their response, the authors failed to engage with this issue other than indicating that my understanding of constitutionalism was not suitable for their purpose. Since the point I was making preceded the publication of my book, Against Constitutionalism, that seemed fair enough, because only in that book was I able to make out the case that throughout the modern era constitutionalism has carried a clear and widely understood meaning. It is, I argued, a liberal theory advocating the need for the written constitution to include a particular set of institutional arrangements that could restrain the power of majorities and set in place a scheme of limited government so that individual liberty might flourish. Distilling its elements, I proposed that the theory asserted that the written constitution should accord with six basic precepts: it establishes (1) a comprehensive scheme of (2) representative government and (3) differentiated powers, which is conceived (4) as having established a permanent framework that takes effect (5) as fundamental law, and which ultimately leads to the constitution being treated as the expression of a regime’s (6) collective political identity.

Constitutionalism's Contemporary Critics

Sandy Levinson

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

For some years, the American legal academy has shared two basic presuppositions.  The first is that the United States Constitution basically constitutes American identity as well as establishing a particular political system. This means, among other things, that is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution (and therefore, what it means to be “an American”).  I have praised Jack Balkin's Living Originalism as not only the best book written on American "constitutional interpretation," but also, I hoped, the last book that would in fact be published on the subject.  Alas, that has not been the case. If anything, the “interpretation wars” have only become more intense, given the insistence of a majority of the Supreme Court, in good faith or not, on “originalism” as the royal road to understanding the Constitution.is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution. 

But a second presupposition, is that the Constitution is worthy of great praise, indeed, an empirical cause for much of what has gone right for the United States over the past 239 years.  The Founders are often praised as brilliant architects of an effective system.  This entails for many the belief that “constitutional design” is itself a crucial topic, especially in the post-World War II era when most countries, with the glaring exception of the United States, were engaged in significant efforts at what might be called “transformations” of their foundational documents or, in the case of “post-colonial” countries, drafting brand new constitutions. 

The Lost Art of the Deal

David Super

      If Vice President Vance was sincere this Spring when he reported that negotiations had failed because the Iranians did not accept the U.S. proposal, I have grave doubts about whether he understands even the rudiments of negotiations.  The news media’s credulous statement that “marathon negotiations” had failed after only twenty hours on a single day raised similar questions about the reporters and editors involved.  And the widespread tendency of progressives to insist that all bad outcomes could have been avoided if Democratic leaders would only “just say ‘no’” suggests a level of naivete that will pose a serious obstacle to maintaining the movement’s unity and effectiveness.  Although I am not a scholar of Negotiation, I have participated in, or been close to, a lot of high-stakes legislative (and litigation) deal-making, both successful and failed.  The pervasive misunderstanding of what public policy negotiations involve prompt me to want to survey some of the most egregious errors. 

      Two widespread fallacies are actually the opposites of one another:  negotiation as magic and negotiation as farce.  Diplomacy is no magic elixir that can bridge any gap; many differences are too fundamental, and many parties believe the consequences of refusing a deal are entirely manageable.  Putin has repeatedly insisted that Ukraine cease to exist as an independent country; Ukrainians do not wish to be annihilated and absorbed into a corrupt dictatorship.  No deal is possible.  Most lapses in appropriations result from both parties’ leaders’ beliefs that their adversaries would suffer greater political damage from a partial government shutdown; no sliver-tongued negotiator would get those leaders to accept a deal until actual experience caused their political expectations to converge.  A skilled negotiator can develop rapport with a great many counterparts, but a deal still needs approval by their respective principals. 

The Enduring Significance of Peggy Sue Got Married (and Constitutionalism and its Discontents)

Mark Graber

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

             The movies “Back to the Future” and “Peggy Sue Got Married” offer different perspectives on the possibility that human beings through reflection and choice can fundamentally alter their condition.  In “Back to the Future,” the protagonist enables his father to change his fortunes in the present by changing his father’s actions in the past. In “Peggy Sue Got Married,” a different time traveler changes her actions in the past, but the result is merely a different path to a similar present.  Michael J. Fox’s fate is determined by his actions, while deeper structures are responsible for the fate of Kathleen Turner.

            Mark Tushnet and Bojan Bugaric in their acclaimed Constitutionalism and its Discontents take no clear position on the debate between “Back to the Future” and “Peggy Sue Got Married.” They have other, more important fish to fry.  Tushnet and Bugaric’s discussion of a world without rules about ruling implies that entrenchment is a human choice, that populations can decide whether to have a constitutional regime. Their admission that “discontents may be so bult into modern constitutions that they will persist even if [their proposed] changes are adopted” (3) suggests that entrenchment is a basic enduring structure of contemporary political life.  Perhaps one day one or both will write a book on the role of human choice and deep structures in constitutional development.  Constitutionalism and its Discontents is not that book and, to be clear, makes no pretense of being that book.

Constitutionalism and the Discontents of Judicial Power

Guest Blogger

Democratic constitutionalism and the end of class-based societies

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Roberto Gargarella

For many years, I have followed the work of Mark Tushnet with admiration. Lately, his contributions have been strengthened through his collaboration with Bojan Bugaric. They have been offering us constitutional studies that are informed by contemporary doctrine, marked by a strong attention to comparative law, a consistently critical eye, and a progressive perspective. Characterized by these traits, the new book that Tushnet and Bugaric have just published, Constitutionalism and its Discontents, represents a very good continuation of their previous book, Power to the People (Oxford UP).

Regarding Constitutionalism…, the first thing I want to say is that I share many of the main lines of analysis that are here presented. This is relatively obvious, on the one hand, given that the approach to constitutional law that I propose in my own studies—that of the "law as a conversation among equals"—is taken up and analyzed in some detail in this book. Beyond that convergence, and on the other hand, I have long been drawn to a "thin" reading of constitutionalism, such as the one they propose: an approach that is modest in its ambitions; aware of the inherent limitations of institutional reforms; critical of traditional modes of judicial review; skeptical of resorting to the "old toolbox" of constitutionalism (i.e., more rights, more courts) to solve the new problems we face; and radically more democratic in its spirit.

The (not so) Secret Life of Constitutionalism and Its Discontents

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026). 

Jedediah Britton-Purdy

I admire and enjoy Constitutionalism and Its Discontents. The authors’ careful parsing of exaggerated or one-sided hopes for constitutional salvation is always worth following. I tend to see it as a series of follow-ups to the authors’ important previous book, Power to the People. There they argue that populism is not necessarily anti-democratic but is often an expression of democratic power and aspiration.  Constitutional limitations on popular power, and in particular on majority rule, can be anti-democratic (normatively) and can (in fact) inspire exactly the kind of insurgent and system-revising politics that they are often wrongly imagined as tamping down. I largely agree with this overall view and have given my own version of it in various places, including The Nation (on populism), the Times (on majoritarianism), and The Atlantic (on constitutional entrenchment), and at book length. Because neither loud agreement nor minor quibbling is very interesting, I’ll instead approach the book from a few odd angles.

Does Congress Have the Power to Ban Non-Citizen Voting?

Gerard N. Magliocca

The Administration's request for emergency relief with respect to its proposed regulations on mail-in voting raises complex issues that cannot be decided on the papers. The Court should hear argument and get full briefing, which in practice means that the rules probably cannot be implemented this year.

For example, the Executive Order at issue in the current litigation starts out by saying: "The right to vote in Federal elections is reserved exclusively for citizens of the United States under the Constitution and Federal law." This is a contestable proposition. The Constitution does not set forth a rule that only US citizens can vote. Section 2 of the Fourteenth Amendment implies only that states can ban aliens from voting. Before and after the Fourteenth Amendment's ratification, some states did permit some aliens to vote. If the Constitution reserves that question for the states, then I'm not sure if Congress can make it illegal for non-citizens to vote, which is part of the statutory basis for the Executive Order.

But there are arguments on the other side. John Bingham was most prominent constitutional leader who thought that the Constitution (at least the 1787 version) barred non-citizens from voting. He made this argument at length to Congress, though his view was rejected in the 1850s for the admission of states like Minnesota that permitted alien voting.

The upshot is that these are deep waters that make a quick ruling with limited filings unwise. 

APSA Panel and Symposium on The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It

Corey Brettschneider

 For those who are attending the American Political Science Association, please join us Friday, September 4 at 2 PM, for a panel on my book, *The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought To Defend It*, with a terrific lineup, including Stephen Macedo, Emily Zackin, Jason Frank, Angelica Bernall, and Jeffrey Tulis. Also perhaps of interest is a recently published symposium on the book, with papers by Emily, Jason, Angelica, and Shep Melnick: https://www.journals.uchicago.edu/toc/apt/2026/15/3

Constitutionalism in Times of Democratic Backsliding

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Laura Gamboa

Though often thought as linear and cohesive the literature on democratic resilience struggles with two relatively opposing premises. On the one hand, the rise of would-be-autocrats is portrayed as the outcome of political establishments unable to adequately represent voters and strong well-entrenched institutions that sustain minority government.[1] On the other hand, scholars contend, would be autocrats are more likely to succeed when they are fighting weak unentrenched institutions that can be easily amended or erased to undermine the checks on the executive.[2]

Scholars and practitioners interested in curbing the erosion of democracy, are therefore, based with a dilemma. Should we strive for well-entrenched hard to change constitution? Or should we design charters that majorities can easily change?

Constitutionalism and its Discontents takes up that question. In it, Mark Tushnet and Bojan Bugaric make a case against constitutionalism: “rules about ruling,” they posit, should be subject to the same forms of political contestation that we use for ordinary policies

Constitutionalism—or the entrenchment of rules about ruling—is not without merits. As the authors recognize, deep-seated rules can provide a more stable framework for political contestation. After all, institutions constrain the set of possible outcomes.[3] They lengthen actors’ time horizons and stabilize their expectations. When the rules of the game are set, elites know what they are playing for and what to expect if they lose. On the contrary, when they easily changed everything is up for grabs; there is no constraint to the set of possible outcomes, and losing becomes all of the sudden more costly.

Yet, as Tushnet and Bugaric highlight, this kind of stability comes with important drawbacks. Constitutions are context dependent. They cement particular setups of empowerment and limitation. Preventing adjustments as the polity’s preferences of what or who ought to be empowered or limited changes can be detrimental to democracy.

Constitutionalism and Its Discontents: A Comparativist’s Take

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Sabrina Ragone

There is much to admire in Mark Tushnet and Bojan Bugaric’s Constitutionalism and Its Discontents, beginning with the ambition and provocation reflected in its title.

The book revolves around a fundamental paradox: constitutionalism seeks simultaneously to empower democratic self-government and to constrain the exercise of that very power. The three parts explore different manifestations of this tension: through the rules of ruling in Part One; through programmatic constitutionalism in Part Two, where the European Union and its economic constitution provide an example of how constitutional commitments intended to enable collective projects may themselves become constraints to democratic choices; and, in Part Three, through efforts to forestall or combat democratic decline, eventually shifting the focus from constitutional design to political parties and the political conditions on which democratic constitutionalism depends.

The paradox is further complicated by a recurring insight of the book: constitutional remedies aimed at addressing one source of discontent may end up exacerbating another. The breadth of the inquiry is one of the book’s strengths, together with the plethora of concrete examples and imaginary situations, which make even complex theoretical arguments accessible and the book enjoyable to read; perhaps precisely for this reason, it also leaves the reader wanting more, as several of the questions it opens would themselves deserve fuller exploration.

Balkinization Symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and its Discontents

JB

This week at Balkinization we are hosting a symposium on Mark Tushnet and Bojan Bugaric's new book, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

We have assembled a terrific group of commentators, including Colm O'Cinneide (University College London), Laura Gamboa (Notre Dame), Roberto Gargarella (Torcuato di Tella University and University of Buenos Aires), Mark Graber (Maryland), Madhav Khosla (Columbia), Sandy Levinson (Texas), Martin Loughlin (LSE), Fernanda Nicola (American), Jed Purdy (Duke), and Sabrina Ragone (University of Bologna).

At the conclusion, Mark and Bojan will respond to the commentators.

Professional AI’s Dual Trust Problem

Guest Blogger

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence.

Claudia E. Haupt

Professional AI’s Dual Trust Problem

Each day, more than forty million people ask ChatGPT health questions. When OpenAI and Anthropic launched dedicated health AI tools that let users upload their medical records and receive personalized guidance, the obvious question was: “Should you trust them?” The question has only grown more pressing: since early 2026, five major technology companies (OpenAI, Anthropic, Microsoft, Amazon, and Perplexity) have released or expanded dedicated consumer-facing AI health applications, each allowing users to connect medical records, lab results, and wearable data to receive personalized guidance.

That question, it turns out, has more than one layer. Instinctively, we might assume the concern is about output accuracy: will the AI give bad professional advice? But a second, perhaps less obvious, problem arises that reaches beyond any individual bad outcome. Untrustworthy AI undermines the entire system of trust that makes human professional advice work in the first place. It’s a dual trust problem.

I examine professional AI’s dual trust problem in a forthcoming essay, Misplaced Trust in Artificial Professional Advice, which makes the argument in two steps.

The First Problem: AI’s Professional Advice Isn’t Trustworthy

The professional relationship with a doctor, lawyer, financial advisor, accountant, pharmacist, therapist, or another advice-giving professional is a specific social interaction. The professional possesses knowledge the client lacks; this results in a knowledge asymmetry that creates vulnerability. The law responds with a set of safeguards: licensing requirements, fiduciary duties, malpractice liability, informed consent. These mechanisms protect the conditions under which a client or patient can reasonably place confidence in a professional’s expertise.

Public-facing AI eliminates the human professional. What remains looks like professional advice: conversational, personalized, authoritative in tone. But the legal and ethical framework that ensures professional advice is trustworthy is absent.

The accuracy problem is real and documented: as of 2024, no commercially available AI app met professional standards for skin cancer detection. Earlier studies on general health queries found frequent errors, and more recent work reinforced those findings. A study published in Nature Medicine found that participants using AI chatbots to navigate common medical scenarios performed no better than a control group relying on ordinary home resources such as internet searches—and users describing the same symptoms sometimes received conflicting advice depending on how they phrased their questions. A separate Mount Sinai study found that ChatGPT Health under-triaged more than half of medical emergencies in structured clinical testing, potentially directing patients with serious conditions toward routine follow-up rather than urgent care.

But accuracy is not even the core issue. Trust is an attitude; trustworthiness is a property. And as Ignacio Cofone argues in a companion piece to this symposium, as well as in more detail in a forthcoming article,[1] trustworthiness is a property of institutions, not of AI systems. The professional relationship, not the chatbot, carries that institutional trustworthiness.

The Second Problem: Untrustworthy AI Undermines Trust in Human Professionals

When a patient consults a public-facing AI and then sees a physician whose advice diverges, the patient faces a question they are not equipped to answer: who is right? And behind that question lurks a more unsettling one: where does expertise actually live?

The proliferation of AI that mimics professional judgment creates epistemic uncertainty about institutional expertise itself. Beyond harming individual users, the AI systematically undermines confidence in the professionals it displaces or contradicts. The problem is structural, rooted in the same inequities of access that drive people to seek AI as a substitute for healthcare in the first place.

Many people turn to AI health tools precisely because they lack access to affordable human care. A March 2026 KFF tracking poll found that about one in five adults who use AI for health advice cite inability to afford a provider as a major reason, a figure that rises to nearly three in ten among users ages 18 to 29. Uninsured adults are more than twice as likely as insured adults to rely on AI for mental health guidance. And the pattern tracks race: Black and Hispanic adults turn to AI for mental health advice at substantially higher rates than White adults. Viewed this way, AI health tools are an attempted patch for a broken system.

The trust being displaced was already fragile, and unevenly distributed across race, income, and geography. Worse, the AI health tools with the most personalized features—those enabling direct integration with medical records—are increasingly behind paywalls, potentially placing them out of reach for those who are already struggling to afford care. What consumer-facing health AI offers is not a substitute for the human professional relationship.

As the law and political economy literature would recognize, the roots of this problem predate AI. First Amendment doctrine, as I have argued elsewhere, has long assumed the availability of professional advice without reckoning with its unequal distribution.[2] This assumption places a heavier burden on those who can least afford expert counsel and who are most dependent on publicly available information (however unreliable) as a substitute. Consumer-facing health AI does not solve this problem; it exploits it, offering a widely available facsimile of expert advice. And the data suggests it’s relied on by users for whom the absence of access to professional advice was already most consequential.

Trust in Institutions, Not AI

The stakes extend beyond individual harm to institutional erosion. As Woodrow Hartzog and Jessica Silbey argue, AI has the capacity to destroy the civic and professional institutions on which public life depends.[3] It may do so by steadily undermining the trust that sustains them. The professions are no exception. Professional expertise generates trust because it is grounded in training, accountable to standards, and answerable to the people it serves. Deploying AI that mimics expertise without embodying any of those properties creates bad individual outcomes and casts doubt on where expertise lives.

The question, then, is not simply whether we should trust AI. It is whether deploying untrustworthy AI erodes the very institutions whose trustworthiness we depend on, and what regulatory frameworks built around human professional relationships can do about it.

Claudia E. Haupt is Professor of Law and Political Science, Northeastern University. You can reach her by e-mail at c.haupt@northeastern.edu.

Defining Predistribution

Guest Blogger

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence.

Ava Liu

There is a problem with the concept of “predistribution”, which is that the idea is ill-defined. At the broadest level, predistribution is defined as what is not tax-and-transfer redistribution. Predistribution is associated with what "can shape the distribution of income and opportunity in a society that are distinct from simply taxing and providing benefits" or that “instead of equalizing unfair market outcomes through tax-and-spend or tax-and-transfer (redistribution), we instead engineer markets to create fairer outcomes from the beginning”.

These definitions are helpful, but they are residual. Predistribution is located as what remains outside of tax-and-transfer redistribution. We know that predistribution advocates are concerned about making markets more fair and equal. We know it is about structuring the market—"the means by which primary market distributions of income and wealth are determined”—or that it is what shapes primary inequality rather than after-tax income.

We know, too, that predistribution is generally understood as operating before redistribution; if redistribution happens with outcomes at a time (T2), then there was a time (T1) before this point. But as legal scholar Alex Raskolnikov recently summarized of the field, “the line between redistribution and predistribution, it turns out, is not well-defined and possibly nonexistent.” Philosopher Martin O’Neill has argued that there is no line between predistribution and redistribution in the substance of their policies.

This is a problem if we care about predistribution as a domain of the economy we want to understand or a set of policies related to inequality we aim to organize around. The term “predistribution” has been around in the political vocabulary for fifteen years yet the idea remains somewhat murky, and advocates self-efface with how blurred it is as a concept. This is limiting if predistribution is to gain traction as a field rather than remain a slogan for policies we intuitively care about but cannot precisely identify.

Fleshing out a positive definition would go a long way. I offer one here.