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.

            Thinking about human choice and deep structures may nevertheless clarify a central theme of Constitutionalism and its Discontents, that creeping authoritarianism around the world is better combatted by policies that combat the inegalitarian impact of globalization than by constitutional rules that entrench political guardrails.  The central question the book raises is whether human beings can choose to make better entrenchments than whether they can decide not to entrench or constitutionalize anything.  Entrenchments of one form or another are baked into political life.  Whether certain economic structures are also baked into political life is beyond the scope of Constitutionalism and its Discontents and this review.

            “Peggy Sue Got Married” provides a better framework for thinking about constitutional entrenchments than “Back to the Future.” The democratic/majoritarian politics Constitutionalism and its Discontent favor and propose to improve concern how to entrench policies as well as about making policies.  Were Tushnet and Bugaric able to transform a constitutional regime into a regime lacking fixed rules about ruling that regime would soon transform back into a constitutional regime with legal, political, and cultural entrenchments.  Political entrepreneurs would either directly entrench or find workabouts for entrenching what they believed were fundamental rights, vital interests, desirable policies, and valued procedures. 

            Achieving a world without entrenched rules about ruling or anything else seems simple.  Tushnet and Bugaric are not anarchists.  They insist only that all constitutional rules be revised consistently with the rules for revising ordinary rules. The same rules that determine whether the income tax should be progressive should determine the length of a presidential term or the extent to which religious believers enjoy exemptions from general laws.  Such a regime might be brought into being by a constitutional amendment declaring “all rules in this constitution may be revised by the ordinary processes for making laws.”  Those concerned about the existing rules for making rules should add another constitutional amendment specifying more desirable rules for making rules.

            This entrenchment/constitutionalism free world will not last long.  Circumstances will soon arise in which majorities in the present will be tempted to make some rules more difficult to revise than others. Popular majorities may think investors in the regime need more security for their property rights than offered by the no-entrenchment regime.  They may think beneficial a deal by which Canada joins the United States in return for the permanent guarantee of twenty Senators. Political authorities might encourage investors and Canadians to read Constitutionalism and its Discontents and other literature (Mark A. Graber, “Constitutions as Constraints,” 83 Maryland Law Review 1059 [2024]) comes to my mind, if no others), but if they hold firm and popular majorities insist on an entrenchment, constitutional authorities will face a dilemma. They can entrench the rules preferred by investors and Canadians or treat the no entrenchment amendment as an entrenchment barring popular majorities from entrenching any rule. Whatever they do will result in an entrenchment of some sort.

            Legal entrenchments are tools that popular majorities use to achieve goals.  Popular majorities may decide that obtaining present investments and having Canada join the Union are worth sacrificing flexibility in the future on some matters.  Tushnet and Bugaric discuss in fine detail and approve similar practices that allow presidents and others gain present powers (determining the details of communications policies) by surrendering future powers (they cannot fire the head of the Federal Communications Commission for any reason).  An entrenched rule against entrenchments is just as much an entrenched rule about ruling that limits what present majorities can do as any other entrenched rule.  Whether such a rule is advisable, Tushnet and Bugaric remind us, depends on circumstances rather than abstractions. Some entrenchments designed to prevent slides to authoritarianism, they note, do not work as well advertised.  Still, as the above examples indicate, many political choices depend on what the constitutional rules shall be rather than on whether to have any entrenched rules at all.

            Regimes have numerous ways of entrenching rules other than as legal constraints not revisable by ordinary legislation that serve as effective if not more effective workarounds for bans on entrenchments.  Constitutions configure as well as constrain politics.  Rather than ask for an entrenched rule, investors and Canadians restructure the processes by which popular majorities make law.  They propose a third house of Congress, the House of Investors and Canadians, that has the power to veto any proposed law.  This “ordinary” rule can be altered by the processes for revising any other law.  The problem is that once the rule exists, Canadians and investors in the Third House of Congress are unlikely to agree to a better law.  On reflection, Canadians and investors may think that making an ordinary revisable law that increases their political power is a better entrenchment than legally entrenching some law that in the future will be implemented by democratic socialists who favor “Lake America.” Again, those who prefer some version of  democratic majoritarianism to constitutionalism reach the same dilemma.  Either popular majorities entrench legally rules that constrain undemocratic changes or they empower popular majorities to entrench rules politically that make their repeal less likely than if those rules were merely entrenched legally,

            The constitutive function of constitutions creates another opportunity for entrenchment.  Investors and Canadians inspired by Madison’s observation that a fundamental purpose of constitutional provisions is to “impress the degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, as one man, when the power of Government is unlawfully exercised” might prefer cultural entrenchments to legal or political entrenchments. Popular majorities that favor this form of constitutionalism will amend the constitution or laws to include a revisable provision declaring that investors and Canadians are vital to the constitutional endeavor and to pass mandating that the significance of investors and Canadians be emphasized in every elementary, middle and high school in the United States.  A fair probability exists that by culturally entrenching the value of investors and Canadians, investors and Canadians will achieve more protection in the long run than if the constitution and laws provided only political and legal entrenchments

            The “Peggy Sue Got Married” problem with entrenchments and constitutionalism exists in large part because all legal changes change the status quo.  The choices people make at one time determine the options available in the future, the processes by which people make decisions, who are the people who make those decisions, and what those people wish to achieve through politics.  Do-overs exist in movies, but not in politics.  Present majorities cannot choose to preserve the dodo bird because past policies resulted in the extinction of that species.  A present decision to adopt a parliamentary decision changes the political balance of power in the future.  A decision to annex Canada impacts who decision makers are in the future. A decision to abandon Diversity, Equity, and Inclusiveness changes the values of those future people.  Much of democratic politics, these examples suggest, are efforts to create legal, political, and cultural entrenchments that will preserve for the indefinite future what present majorities think are fundamental rights, vital interest, desirable policies, and valued procedures.

            These struggles over what to entrench, in keeping with the “Peggy Sue Got Married” theme, change the path by which Tushnet and Bugaric reach their final, most important, conclusion, but not the conclusion they reach.  One central teaching of Constitutionalism and its Discontents is that democracy is best maintained by a politics that promotes a strong and confident middle class than by policies that legally entrench certain rules of the game.  That strong middle class when in power will inevitably engage in some combination of legal, political, and cultural entrenchments that democratic majorities at a particular time think will sustain a strong, middle class.  Popular populist majorities will establish guardrails that they believe will best prevent severe economic inequalities from reoccurring.  They will adopt political processes that they believe most likely to maintain an egalitarian political order.  They will socialize citizens so that more people favor the merits of egalitarianism when compared to neo-liberalism.  Many if not all of these entrenchments will be subject to the concerns Tushnet and Bugaric raise.  Entrenchments that work in some times and in some places will not work at other times and other places.  Entrenchments that do not work as expected will nevertheless create persons will strong interests in maintaining them.  This is no reason to discard entrenchment or constitutionalism.  As Tushnet and Bugaric acknowledge, people often have to sacrifice future power to do want they think more vital in the present.  Democratic politics is an ongoing struggle on unbalanced playing fields, not one that can be resolved by any form of present entrenchment. 

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.

In any case, and beyond my expressed general agreement with the book's main perspectives, I would like to use the little space I have left to establish a point of partial disagreement, which perhaps suggests the presence of somewhat larger disagreements, both in diagnosis and in proposals. The disagreements I have in mind are particularly evident in chapter ten—the last and most proactive: "Preventing Democratic Decline: The Role of Political Parties." In my opinion, this chapter most clearly exhibits a certain diagnostic error regarding the ills that currently afflict democratic constitutionalism, one that was already apparent in the preceding chapters.

The diagnostic problem seems clear in almost every proposal presented here to prevent democratic decline. Thus, for example, when the authors state that "political leaders need to regain credibility by delivering simple and palpable benefits, such as good salaries, decent pensions..."; when they repeatedly assess that "major parties just miscalculated" how to act in times of crisis; when they suggest new forms of "interactions between party members and the party organizations"; when they advise "patience until party leaders on their own figure out strategies to improve their responsiveness to their 'ordinary workers' members"; when they insist on the idea of ??"strengthening party leadership"; and so on.

I believe that relying on partisan politics; the old (or renewed) political parties; party leadership; social mobilization around parties, etc., as a response to the current crisis, is misguided. This is because the social and economic conditions that gave meaning to political parties, and more generally to traditional forms of political representation, have disappeared. The key—in my opinion—is that we are undergoing a difficult transition from a class society (a few internally homogeneous social classes with stable interests) to a society with significant economic dispersion (self-employed, freelancers, part-time workers, the unemployed, informal workers, etc.) and a radical multiculturalism. In social and cultural terms, our societies not only appear fragmented into a vast diversity of groups with heterogeneous identities and/or interests (women, indigenous people, ethnic minorities, etc.), but also—in addition—each person exhibits a multifaceted identity. Today it is difficult to define someone -as in the past- as a worker, or a feminist, or an anarchist. That person can be, at the same time, a worker, a feminist, anti-immigrant, pro-drug use, anti-gun, anti-abortion: each of these facets, added together, constitute a person's identity. The "problem" that this situation generates is serious because therein lies the promise of an unrepresentable political perspective. The issue is grave because our entire constitutional structure, along with our political-party organization, has been prepared for a society that no longer exists and that cannot be recreated on its old terms. This is why the old constitutional structure is outdated (different branches of government representing different sectors of society, as in the idea of ??"Lords and Commons" or "the few and the many"); and the "old toolbox" of constitutionalism (more constitutional rights, more courts) is no longer useful. This is why it no longer makes sense to redesign political parties, or to continue betting on old forms of political representation, or to make proposals to strengthen party leadership. The fact is that the traditional "constitutional framework" has become a "tight suit" that no longer fits the "body" of these new societies, and the remedy of party politics that we appealed to in the 20th century (in order to continue making political representation possible). It no longer serves us -now, at the beginning of the 21st century- to achieve the old “noble dream” of constitutionalism (full inclusion/full social representation, checks and balances, etc.).

The social, economic, and cultural changes that our societies have been undergoing since the end of the 20th century require new political and constitutional responses. These responses must move beyond nostalgia for a bygone era that we will not recover (the era of strong political parties and unions, of large social movements). Furthermore, these responses must be attentive to the need for new forms of representation (perhaps representation to decide on a single issue and then dissolve, as sometimes happens in the new Citizens' Assemblies). And, of course, these responses must be aware of the troubling legacy of old practices: captured institutions; political elites that are difficult to remove from their public positions; party leaders who, once in power, seek to erode the old system of checks and balances, and so on.

In their new book, Tuhnet and Bugaric show themselves open to some of the alternatives I have just suggested —for instance, they have warmly welcomed initiatives such as Citizens' Assemblies and other renewed forms of political participation—but their underlying analysis remains anchored in assumptions and proposals specific to a society that no longer exists. Nevertheless, the sharpness, curiosity, critical analysis, and open-mindedness that continue to characterize their study of the state of democratic constitutionalism are highly commendable.

Roberto Gargarella is Professor of Constitutional Law at the Universidad de Buenos Aires. You can reach him by e-mail at roberto.gargarella@gmail.com. 

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.

The Tech Energy Transition

Guest Blogger

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

Amy L. Stein 

It has been three and a half years since ChatGPT exploded on the scene, and many have yet to wrap their heads around the environmental, economic, and ethical implications of AI’s lifeblood – data centers. Without these sprawling facilities that house thousands of servers and mountains of computational equipment, AI is ineffectual. This makes the physical limitations of AI’s growth much more pronounced that initially anticipated. The true bottleneck for AI development is the energy required to power these data centers, rendering the electric grid ground zero for data center development disputes. These disputes center around the clash of two titans: Big Tech and Big Utilities. While the largest privately-owned electric public utilities (Big Utilities) have dictated the shape of our grid for the last century, Big Tech’s emergence in the grid space has disrupted assumptions, regulatory approaches, and ratepayer economics in ways previously unimaginable. This renders power dynamics in the electric grid space a ripe testing ground for political economy scholars focused on how power, wealth, and institutional rules determine winners and losers. 

My most recent work, Shifting Structural Power: The Tech Energy Transition, 101 Indiana Law Journal 583 (2026), draws upon theories of structural power in the international political economy (IPE) literature to tease out the relationships between these Big Utilities and Big Tech.[1] In the IPE literature, structural power is generally understood as the power to choose and to shape the structures of the global political economy within which other stakeholders must operate. Professor Susan Strange was concerned that financial wealth dictates politics, and that corporate influence had surpassed the control of governments. As she elucidated in 1987, power was not only about tangible resources like territory and military, but also about the power to decide how things would be done, to shape frameworks within which actors relate to each other, and to set the agenda in a way that defines the choices available to others.[2] She explained structural power as being found in four separate but interrelated structures: the ability to control (1) other people’s security; (2) the system of production of goods and services; (3) the structure of finance and credit through which it is possible to acquire purchasing power without needing to work or trade it; and (4) the acquisition, communication, and storage of knowledge and information. These four pillars are useful in identifying sources of power, organizing the mechanisms through which power can operate in policy processes, and exploring the consequences of such shifts for regulatory and political systems and outcomes. And they map nicely onto Big Tech’s activities in the grid space. 

Big Tech’s control over these four pillars of such power—information, finance, production, and security—are providing it with structural power that challenges even the durable monopoly power of electric utilities. This structural power stems not just from market power, but from a private firm’s investment power to shape the regulatory framework within which it functions. Unlike the monopoly power long enjoyed by electric utilities, Big Tech’s structural power is tied to their ability to shape the rules that affect them due to the government’s dependence on their economic investments, the trillions of dollars they anticipate spending on AI-related investments, their tight control over information related to data center development, and their impacts on reliability of the grid. After decades of sitting on the sidelines in energy spheres, Big Tech is poised to exert significant structural power on the stakeholders in the grid space. This in no way suggests that an analysis of structural power in the grid space involves a simple bilateral relationship between Big Tech and Big Utilities. 

The electric grid space begs for a deeper analysis of competing levels of structural power of Big Tech and Big Utilities vis-à-vis many other players. Local governments (primarily through zoning and land use commissions), state governments (primarily through public utility commissions), regional planners (primarily through regional grid operators), and the federal government (primarily through the Federal Energy Regulatory Commission) all interact with each other and these entities to maintain and develop the U.S. grid. Many other actors in the grid space can exert degrees of structural power, including various other government actors; quasi-governmental entities; and various business interests surrounding the grid, including private equity players and critical supply chain providers. But this work attempts to first disentangle the respective power of Big Tech and Big Utilities and hopes to spearhead future analysis of the power dynamics surrounding these other actors in the grid space.

This short contribution here demonstrates why data centers, and particularly the largest called hyperscale facilities that are measured in gigawatts and acres, provide a master class in political economy. Although there are many dimensions, this highlights the risks of three dimensions: (1) asymmetries between costs and benefits, (2) regulatory capture, and (3) private control of public resources.

Public Institutions Can’t Outsource Their Reasoning

Guest Blogger

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

Ignacio Cofone

[This essay distills part of the argument in Ignacio Cofone, Institutional Accountability and Legitimate Inference in Algorithmic Adjudication: Beyond Trustworthy AI, forthcoming in Cambridge Forum on AI Law and Governance (2026).]

AI does not relieve courts and administrative agencies of the duty to defend the reasoning behind their decisions but, on occasion, it does make that duty harder to satisfy.

For most of the 2010s, the Dutch tax authority used a self-learning algorithm to flag potential fraud in claims for childcare benefits, a means-tested subsidy that helps parents cover daycare costs. The system assigned higher risk scores to families with certain characteristics, including dual nationality. When civil servants reviewed flagged claims, they were given no information about why the system had assigned the score. More than 26,000 families were wrongly accused, many of them ordered to repay tens of thousands of euros in full, often with penalties and no installments. Some lost their homes, their jobs, or custody of their children. In January 2021, the entire Dutch cabinet resigned over the scandal.

The Dutch Data Protection Authority called the practice unlawful and discriminatory when it fined the government under the GDPR. A parliamentary inquiry found a violation of the rule of law. The Dutch high administrative court had reviewed individual cases for years without catching any of this. All these failures came back to the same institutional defect. A self-learning model was producing decisions affecting thousands of families, and the institution running it could not, on demand, reconstruct any of those decisions in terms the law could evaluate. The reasoning path leading to action against a family was opaque to everyone in a position to challenge it: the family, the civil servants reviewing the flag, and any court asked to review what the institution had done.

In Toeslagenaffaire, everything that is supposed to make a system like this accountable was in place. There was an approved algorithm and a procurement process behind it. Civil servants reviewed every flagged case. Procedures, escalation paths, and appeal rights existed on paper. None of those gave the institution the ability to answer for the outcome. The AI does not take that role on. Trustworthiness in adjudication is the institution’s work.

Courts and agencies derive their authority from the procedures they follow, such as rules about what evidence may be considered, requirements to give reasons, opportunities to contest, and standards of review. None of these properties belong to a model. The institution still has to justify that output the way law requires, defend it under cross-examination, and respond on appeal. When AI participates in a decision, the institution needs to ask whether it can keep doing those things well. When it cannot, accuracy alone will not save the decision.

The standard policy response treats this as a technical problem with a technical fix: explainable AI, meaning systems designed to give an account of how they reach their outputs. The European AI Act requires explainability, and multiple US bills propose disclosure of model logic. The premise is that if a system can describe what it does, accountability follows. But it does not follow necessarily. Such a description tells a court or an interested party how the system reaches its outputs, but not whether a decision that incorporates those outputs rests on grounds the law permits. That is a question courts and agencies have to answer.

Call the capacity to answer it traceability. Traceability is the ability to reconstruct the reasoning path from evidence to decision in terms that can be evaluated against legal standards. Explainability tells a reviewer which features the model weighted. Traceability requires that those features be legally permissible considerations, that the weight assigned to them be defensible, and that the affected party have had a real opportunity to challenge them. Many explainability tools produce counterfactual statements that show what feature mattered most by varying it (e.g., “if the defendant had lived in a different neighborhood, the score would have been lower”). That statement describes the model output but does not justify the decision; it does not, for example, tell stakeholders whether neighborhood is a permissible ground for sentencing. The model alone cannot answer the legal question. The institution has to.

Three things follow. First, a model’s lack of transparency does not relieve an institution of its traceability duty. Opacity makes traceability harder to satisfy, but the duty runs to the reasoning path the institution constructs around the model and not to the model’s internals: what the output represented, what weight the decision-maker gave it, how it was integrated with other evidence and applicable law, and how the affected party could contest each of those steps.

Second, traceability is what existing doctrine already demands once AI is involved. Due process requires that an affected party be able to identify and challenge the basis of a decision against them. Arbitrary-and-capricious review under administrative law requires that an agency consider the relevant factors and explain how they connect to the choice it made. Equality doctrines require that decisions not rest on impermissible grounds. None of these doctrines is satisfied by an explanation of how a model works. All of them require that the institution show why the resulting decision rests on grounds the law permits.

Third, this reframes what deploying an AI system commits an institution to, whether the system is built in-house or procured from a vendor. The duty to justify a decision is the institution’s regardless of what tools it uses to aid in the decision. Deploying AI does not move that duty to the model, the vendor, or the engineer. The procurement contract or internal documentation must let the institution obtain the information it needs to justify its reliance on the system and the decisions that follow. The Dutch tax authority deployed a model whose internal logic it could not interrogate, even at the level of its own civil servants. The moment a penalized family asked why, the institution had no answer.

One reply to all of this is that better accuracy and explainability will close the gap. They will not because the gap is not technical. A perfectly accurate model still tells a court only what the case is statistically, not what the law permits an institution to do with that information. Counterfactual explanations and feature attributions describe the model with more precision, but they still cannot tell a court whether a decision the institution reached on the basis of the model rests on grounds the law permits. Better model accuracy and technical description, while desirable, do not answer questions of law.

When an institution cannot account for its decision in terms the law can evaluate, it has tried to outsource its authority to the AI system it relied on. That is not authority a court or an agency has to give. In Toeslagenaffaire, when the institution was finally asked to defend its decisions in legal terms, it could not. Whether the model was accurate or sophisticated was beside the point. The same standard applies wherever AI shapes decisions about rights, from risk scores in bail hearings to generative outputs in administrative decisions.

Ignacio Cofone is Professor of Law & Regulation of AI, University of Oxford. You can reach him by e-mail at ignacio.cofone@law.ox.ac.uk. 

Balkinization Symposium on the Global Political Economy of Artificial Intelligence

JB

Trump, vaccination, and the right to kill children

Andrew Koppelman

Does liberty mean a right to kill other people’s children, slowly and painfully?  It would, if the Trump Administration had its way.  It’s pressing states to allow broad vaccine exemptions as part of its larger campaign against settled medical practice.

The danger is clearest with measles. Children usually recover from it, albeit often with some permanent damage. But a 2016 California study found that when infants under a year old are infected, subacute sclerosing panencephalitis (SSPE) – in which the virus lingers in the brain and slowly destroys it – develops in about one in 600 cases, far higher than the 1-in-100,000 figure doctors long cited. Long after the initial infection, the child becomes clumsy and forgetful, then experiences headaches, fevers, and seizures, loses motor control, and finally becomes bedridden and dies. There is no cure.

Babies can't be vaccinated on the standard schedule until 12 to 15 months old — earlier doses, at six months, are only given for travel to outbreak areas and don't count toward full protection. (Under the schedule revisions the Department of Health and Human Services just proposed, some of that timeline would push even later.) Until a child is protected, the only way to guard against SSPE is to keep them away from unvaccinated people. In Germany in 2000, an unvaccinated 11-year-old boy was taken to the pediatrician with a fever. He infected six children in the waiting room, including three babies. Two of them developed SSPE.  Natalie died in 2011 and Micha in 2013.

Measles is astoundingly contagious. You can catch it by entering a room two hours after an infected person left. The country has recorded more cases since early 2025 than in the previous 25 years combined, according to Centers for Disease Control and Prevention data. More than 70 percent of confirmed cases are children. The administration's anti-vaccine rhetoric is a principal driver, and if it gets its way, the unvaccinated share of the population will keep rising. Scale up that one-in-600 figure, and that's a lot of dead children.

I elaborate in a new column at USA Today, here.

26th Amendment Circuit Split

Gerard N. Magliocca

The Fourth Circuit today held that a South Carolina law restricting "no-excuse" absentee mail-in ballots to voters 65 and older violates the 26th Amendment. This decision stands in contrast to other circuits that upheld related laws during the pandemic. The Supreme Court has never heard a 26th Amendment case. This could be the Term where that silence ends.

Technology and Constitutional Rot

JB

I have posted a draft of my latest article, Technology and Constitutional Rot, on SSRN. Here is the abstract:

Technological change affects the Constitution not only by creating new problems of constitutional interpretation, but also by changing the distribution of economic and political power. New technologies alter what governments and private actors can know, control, predict, and accomplish. When constitutional institutions fail to adapt, large shifts in power and control can lead to constitutional rot: the process by which a democratic republic becomes less democratic and less republican over time. The United States has suffered from increasing constitutional rot over the past four decades; rapid technological change has made the rot worse.

Our Second Gilded Age has many similarities to the technological and economic upheavals of the First Gilded Age, which was also a period of constitutional decay. We now live in the Algorithmic Society, where public and private decision making increasingly depend on algorithms, artificial intelligence, platforms, large-scale data collection and digital surveillance. The Algorithmic Society produces an Algorithmic State, including a National Surveillance State organized around prediction and prevention. These changes disproportionately strengthen the executive branch, weaken Congress, limit practical judicial oversight, and increase government’s dependence on powerful private firms and privately-owned technological infrastructure.

Large global technology companies increasingly exercise governing power over communications, commerce, national security, access to information, and public debate. As a result, government and technology firms engage in repeated attempts at mutual co-optation, blurring traditional distinctions between public and private power. Digital platforms reshape the public sphere through an attention economy that weakens knowledge, intensifies political polarization, and erodes trust. These changes exacerbate four central features of constitutional rot: growing wealth inequality, political polarization, loss of trust, and policy disasters.

Despite these dire circumstances, the United States has recovered from periods of constitutional rot before. The First Gilded Age gave way to the reforms of the Progressive Era and the New Deal. Today constitutional renewal involves a different set of reforms: new digital privacy laws and new antitrust, civil-rights, and due-process protections. Renewal means reconstructing and improving the knowledge institutions that underwrite our democracy. It requires structural changes that better allow Congress to check and oversee the executive branch. And it requires reforms that secure and strengthen our system of democratic representation.

Analyzing War Powers: Ways Forward (Part 3)

Stephen Griffin

 Despite the lack of constitutional amendments with respect to war powers, there are two inescapable legal changes that must be kept in mind when analyzing questions of war powers in the present.  Along the pathway pioneered by Bruce Ackerman, one might call them “amendment-level.”

The first is that the United States has global responsibilities (along with the ability to project power) it did not have in the eighteenth and nineteenth centuries, not only because the foreign policy landscape is different but because of duly ratified treaties and other agreements that are their de facto equivalent.  The second is that the War Powers Resolution (WPR) is, as a prominent scholar recently reminded us,  “binding law,” and, by its terms and purpose, remains a cutoff point for the legal relevance of historical executive practice.  In other words, although this has never been acknowledged by executive branch lawyers, it reset the table with respect not only to executive-legislative relations but with what counts as a sound argument.

There’s also a logical point that should be borne in mind – that the oft-cited distinction between offensive and defensive wars never made any sense, either in the eighteenth century or in our own.  As becomes evident if we treat war powers in the context of foreign affairs (see Part 1 of these posts), war is always a political and policy choice.  As such, it is governed by the same set of provisions in the Constitution irrespective of whether it can be classified as offensive or defensive.  Furthermore, war is a choice even if we are “suddenly attacked.”  Believe it or not, American history has featured a number of instances where U.S. military forces were egregiously attacked, yet no one jumped to the conclusion (as Hamilton once mistakenly argued) that we were automatically at war.  On top of this, it appears that the legal effect of the U.N. Charter (one of those treaties mentioned above) was to rule out recourse to offensive war as an instrument of foreign policy and also, by the way, declarations of war.  But that just moves us back to where we should be, which is whether Congress authorized the war in question.  As reviewed in post 2, where the past used declarations of war, we use AUMFs.  No harm, no foul.

Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person

Andrew Koppelman

What’s Wrong with the War Powers Debate (Part 2)

Stephen Griffin

It has been difficult for participants in the war powers debate to describe accurately the legal status quo.  Is the WPR’s constitutionality in dispute?  If it is constitutional, does it play a meaningful role?  Are AUMFs the constitutional equivalent of declarations of war?  What does the Constitution require in the context of the national security state built after WWII?  What is the legal position of the executive branch as represented in OLC opinions?  And so on.

To make progress in this fraught area, we need to think differently about the way the Constitution is enforced.  It is not only enforced through the judiciary.  The other institutions responsible for enforcing the Constitution, including political parties, do not enforce it all in the same way.  The political branches deserve that name because they do not necessarily follow a juridical model.  For example, they do not necessarily rely on or pay much attention to common law reasoning based on exemplar cases or historical practice.  So while the Constitution is enforced politically as well as legally, they do not look the same.

In this light, consider a recent attempt to make sense of the war powers debate by Jeh Johnson and Ethan Klaris, published in a 2026 issue of the Journal of National Security Law & Policy.  This article attracted attention because Johnson has practical experience.  He was General Counsel of the Department of Defense and later Secretary of Homeland Security in the Obama administration.  Johnson and Klaris interviewed several key members of Congress with respect to their views on war powers, albeit mostly Democrats.  Their subtitle states their fundamental theme: “Executive Expansion and Congressional Retreat.”  This is supposed to describe the course of war powers throughout American history.  I contend this is misleading as history, but it is actually difficult to find a steady throughline to contest their argument.  This is because they fail to set forth criteria that would enable us to determine whether, say, Congress was retreating or advancing.

This failure is part of a larger problem with the war powers debate.  Making distinctions about how and why Congress acts is long overdue.  Besides the distinction between juridical and political enforcement of the Constitution, we need also to think about the purpose of the “declare war” clause and the WPR.  Is it to make war constitutionally legitimate or, in the end, to slow down or stop contemplated military operations?  Some commentators appear to assume that if there were full compliance with the Constitution and the  WPR, this would sidetrack or terminate most proposed military adventures.  But that is a non sequitur, a literal “does not follow.”  The legal provisions respecting war are about legitimacy in the first instance, not about putting national security policy on a particular pathway. 

Similarly, consistent with the oft-repeated dictum that Congress is a “they,” not an “it,” some members of Congress, at least beginning in the Cold War and after, have always supported vigorous presidential leadership in foreign affairs, including with respect to decisions for war.  In contemporary times, some adhere to an “ideology of threat,” namely that the world is a dangerous place and must be periodically curbed through the application of overwhelming military force as determined by the president.  The late Senator Lindsey Graham was an excellent example.  Further, despite the genuine bipartisan support for the WPR, in the wake of Vietnam and with the return of Republican presidents, the parties developed an asymmetry with respect to war powers, especially in the Senate.  Democrats remained haunted by Vietnam for years, while Republicans shook the trauma off, figuring (like Nixon) that they were not ultimately responsible.