• Trump Wants to End Birthright Citizenship. President Trump said he was preparing an executive order to end birthright citizenship in the United States. It’s unclear if he can do so unilaterally.

The initial Times report contained little more than this squib. (It was updated in the hours that followed.) But it turned out to be pretty typical.  Much of the news coverage throughout the day treated the legal question here as one whose answer is “unclear,” “much debated,” and generally full of doubt.

When I read the alert, my first thoughts ran to media criticism. How can the Times possibly be so irresponsible as to suggest that it is “unclear,” or in any respect a close question, whether President Trump has the power through executive order to abrogate the bedrock guarantee of birthright citizenship codified in the Fourteenth Amendment?  A reader inclined to be generous to the Times might observe that “unclear” here may function as a sort of journalistic term of art to describe the existence of a disagreement. In other words: Some say the earth is warming, some say it isn’t; perhaps on one (seemingly rather prevalent) view of journalistic craft, a journalist ought therefore to describe it as “unclear” whether the earth is warming.

That view tends to obscure the place where the main action is. Disagreement, yes, but disagreement among whom? For any belief, no matter how crazy or off the wall, there’s likely someone who believes it. It’s not that hard to find people who believe the earth is flat. An underrated but central part of the job of a journalist—I actually think it is one of the most important parts of the job of a journalist—is to perform a credentialing function, separating the mainstream speakers from the cranks and in that way orienting readers. Thus, a good journalist is obligated to make it plain that in the case of global warming, there is disagreement, and that disagreement consists of an overwhelming, near-unanimous scientific consensus on one side and a crew on the other side consisting of a mixture of well-paid professional obfuscators and a few contrarian cranks. (Plus most of a major American political party, for what it’s worth, which on scientific matters is not much.) This framing is controversial; it is also correct. Why? The justification is actually rather complex and has to do with a larger and well-founded background belief in the enterprise of science itself and the internal norms of the scientific community as a powerful method of gaining knowledge about objective reality. Such a background belief doesn’t mean a journalist should uncritically accept everything a scientist says about a scientific topic. But it does help with judgments of credibility. In Jack Balkin’s ever-more-relevant formulation, it helps us make judgments about what’s “off the wall” and what’s “on the wall.” Basically it helps separate the mainstream speakers from the cranks.

With the Constitution this is not so easy. Both climate change and constitutional law are subjects of hot political debate. (Earth shape, less so.) Climate change, the shape of the earth, and constitutional law are also subjects about which some speakers—scientists on the one hand, lawyers, judges, and legal academics and commentators on the other—have role-based claims to various degrees of expert knowledge and authority. The challenge for journalists in reporting on constitutional controversies in our time is that the methods one would typically use to confidently isolate the flat-earthers and the climate skeptics—to show your readers that these people are cranks—do not work in the same way in constitutional law, because they rest ultimately on foundations that are not available in constitutional law.

Imagine that many powerful people decide that the earth is flat. Suppose a powerful social movement advances this view, takes over a major political party and a major cable news network, and gains the power to appoint public officials and others who share the view. A lot of Americans would likely come to agree that the earth is flat. But here’s the thing: They’d still be cranks. Whatever any authority says, the earth is still round. The climate is still changing. You see the problem. Constitutional law, unlike the physical earth, is a human creation whose substance can and does change in significant ways as a result of complex political-legal-sociological processes of constitutional change.  This creates special challenges for journalists covering controversies in constitutional law.

Aziz Huq and Tom Ginsburg should be lauded for their important and excellent new book, How to Save a Constitutional Democracy. They effectively show that most failures of democracy in the last century didn’t appear suddenly and obviously, like a coup. Rather, contemporary authoritarians have used pre-existing legal and constitutional mechanisms to gradually remove the key features of liberal democracies. This is a book that needs to be read and studied closely by scholars.

III. Originalism and the Original Constitution

If, following the previous installment of my response, I am right that central aspects of our constitutionalism are not, as is often assumed, inexorable byproducts of the Constitution, but instead are an optional set of practices that have grown up around it, then—as several readers note—that surely holds implications for debates over constitutional originalism. But it is not obvious what those implications are, and, as both Jack Balkin and William Baude indicate, they could vary (and perhaps dramatically) depending upon which kind of originalist one is. Through constructive engagement with my work, each of them identifies different reasons why (at least some) forms of originalism are compatible with my account of the Founding. Even if one accepts their well-reasoned arguments, though, I think many originalists would have difficulty accepting some of what Balkin and Baude point to, at least not without revising longstanding commitments.

Balkin concedes that originalists’ unifying precept—that the original meaning of the Constitution was fixed at the time of adoption—“presumes a particular vision of what the Constitution is and how it operates” and he seems persuaded that this vision was not entrenched in the earliest years of the document’s existence. This fact, though, presents little concern for most originalists, he argues, since they can still believe that the purpose of interpretation is to recover original meaning even if the supporting theory was not in place at the Founding. This is partly because we are not beholden to the intentions or expectations of the Founding generation and partly because it can take time to understand the nature of what people have created. But, according to Balkin, it really comes down to a historicist argument—one the initially focuses on interpretive method but eventually spills over to the fixation thesis itself. As he write, originalists argue for this thesis on the basis of “a historical practice of reading the Constitution.” That is, originalists treat constitutional meaning as fixed not because the Constitution demands it, or because it is in the nature of interpretation, but because “of a living interpretive tradition.” If I am reading Balkin correctly, he seems to agree that originalism is a non-necessary way of thinking about the Constitution that only applies “because of the history of a particular set of rhetorical practices organized around American law and American constitutions.” Had a different set of practices emerged from the 1790s or later, a wholly different way of thinking about the Constitution might have proved natural. In this regard, originalism is not a logical byproduct of the kind of thing that the Constitution is. Instead, originalism is the logical byproduct of a historically-contingent way of imagining and arguing about the Constitution. Balkin’s historicist account indeed compliments my portrayal of the Founding.

But I suspect most originalists would have difficulty accepting Balkin’s description. While originalists are often fond of saying that their theory is based on certain normative commitments—to popular sovereignty, to supermajoritarian rule, to particular conceptions of justice, to judicial constraint—most forms of originalism really begin as theories of what the Constitution itself actually is. Whereas other theories get caught up in what the Constitution ought to be, originalism instead respects the Constitution for what it is. As Baude suggests, effectively summarizing what many originalists think, it is “just in the nature of things that writing down constitutional principles would result in a fixed Constitution that should be interpreted using originalism.” Accepting the historicist point would mean recognizing that it is not, in fact, in the “nature of things” that writing constitutions down results in a particular kind of fixity; it would mean recognizing that it is only because of a contingent set of constitutional habits and practices that we find that train of reasoning logical to begin with. This is where the Founding generation comes in. Irrespective of whether we are beholden to their specific intentions or expectations, we might nonetheless conceive of the Constitution in a particular way, not because of anything essential to the Constitution, but because of practices they contingently initiated. If nothing about the Constitution ever required us to treat it as distinctively written, and thus fixed in a certain way, if we only do so because of a non-essential set of habituated practices, then why must we continue to talk and think that way? Constitutional fidelity would not seemingly require it.

Balkin seems to agree that we don’t have to. Nothing absolutely necessitates our practices, he suggests. Their legitimacy instead derives from the fact that they are part of our living tradition that we sanction through continued usage.

This could be where Balkin and many other originalists might part ways. Ever since he unveiled his pathbreaking theory of living originalism, Balkin tethered originalism to a narrative of redemption, to an account of how the Constitution could be redeemed over time as our law. In this regard, his arguments in this symposium strike me as as a logical extension of his longstanding commitments. But most other originalists, by contrast, remain committed to a narrative of restoration, to an account of how the Constitution can be restored to what it has always been. These originalists would, it seems, be much less eager, let alone willing, to accept Balkin’s historicist account of the origins and development of constitutional practice. I imagine they would still insist that the Constitution is a text because it’s a text and that it’s fixed in a particular way because that’s the only way a constitution could be fixed. The Constitution just is these things no matter what anybody thinks about it. If what I have argued in my book is correct, then I would think these originalists would either have to explain why their particular understanding of constitutional text and fixity automatically inhered in the Constitution from the start (regardless of what practices or assumptions initially surrounded it) or they would have to offer a new set of justifications explaining why the Constitution today should be treated as a particular kind of object with a particular set of attributes even if, in fact, it was never necessary to see it that way at all.

In his characteristically sharp and insightful response, Baude adopts a different perspective, specifically considering if my historical account poses problems for original law originalism—the version of the theory that he and Stephen Sachs have pioneered. Full answers will have to wait for more detailed work, Baude reports, but in the meantime, he gives us plenty to chew on. He poses a series of questions aimed at identifying whether the deep constitutional contestation I illustrate at the Founding in fact undermines the very concept of original law. A great deal hangs on what we mean by law here. On the one hand, I am convinced that the disagreements that followed ratification were fundamental in nature, cutting to the very core of the Constitution. But, as I say in my Introduction, these disagreements always fell under the accepted authority of the Constitution. Everybody acknowledged that, whatever else was true, it was supreme law. But law seems to pick out something more specific in Baude’s theory, not just a source of law but a set of methods or principles for deciphering and elaborating it. I argue that few subjects elicited more confusion or disagreement at the Founding than interpretive methods, but I wonder if Baude and I are talking about the same thing when we reference established rules. And if we are picking out the same thing, perhaps other accepted legal methods, such as Madison’s account of “liquidation” that Baude has so carefully delineated, can explain how certain features of the constitutional landscape became settled over time, and thus how original law originalism and my historical narrative can work in tandem. Bernadette Meyler raises this exact possibility, wondering if my book doesn’t offer, as she puts it, “a larger kind of liquidation narrative.” Perhaps debates in the 1790s, she suggests, liquidated the Constitution itself, transforming it from an inchoate object into a fixed, written text. While, in my book, I had only hoped to suggest that, by 1796, Americans’ distinctive conception of constitutional fixity had emerged, not that all fundamental issues had been settled, nonetheless Meyler’s interpretation could indeed support Baude’s conception of originalism which—as he argues in his sophisticated new article—can and should be wedded to Madison’s idea of liquidation.

I am still digesting Baude’s interesting argument. But while I very much take his and Meyler’s point about it, I wonder about two things. First, how widely accepted was the idea of liquidation beyond Madison? More critically, how much acceptance is needed to make it part of the Framers’ law? Second, would most other originalists take liquidation on board? My hunch is that many of them would balk at the prospect, not least because incorporating it would require abandoning certain commitments. Many of them remain wary of adopting the idea of construction after all, or at least its more radical possibilities.

So it could well be that Balkin’s and Baude’s versions of originalism (as Balkin indicates in his own way) are compatible with my account of the Founding while other forms of the theory are not. Regardless, I eagerly await cashing Baude’s promissory note to know for sure.

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

As in most of Europe and Japan, the U.S. population is aging rapidly as baby boomers have entered retirement and birth rates have been declining for several decades. Demographic trends predict that a looming crisis in the provision of long-term care that will grow worse over time, especially in the climate of restrictive immigration policies and proposals to block grant and cap spending on Medicaid, which devotes 2/3 of its funding to long-term care.  As described below, a potential solution to address the supply gap in long-term care is the increased use of smart machines, embedded sensors, and artificial intelligence empowered robots (I collectively refer to these varied technologies as “carebots”) to deliver long-term care services directly and/or augment the capabilities and productivity of fewer human providers.  However, I contend that the basic FDA framework of reviewing the safety and efficacy of medical devices is inadequate as applied to these technologies as they potentially can harm the autonomy interests of patients that still retain decision-making capacity.  Thus, I propose an enhanced regulatory framework for carebots that addresses a patient’s autonomy concerns in addition to safety and efficacy.
 

Long-term care provides support services for those who have physical or mental impairments that prevent them from autonomously carrying out activities of daily living (e.g., eating, bathing, and dressing) and instrumental activities of living (e.g., preparing meals, managing medications, housekeeping).  Long-term care comprises a spectrum of services, including home health services, adult day centers, assisted living, nursing homes, skilled nursing facilities, and intensive care facilities.  The typical long-term caregiver in the U.S. is not a paid professional, but rather an unpaid relative or friend.  However, the challenge is that this cohort of caregivers is approaching the age where they might need long-term care and it is not clear where that assistance will come from.  Thus, demographers predict that the caregiver support ratio, defined as the number of potential caregivers in the prime age group of 45-64 (includes unpaid family members and paid home aides) for every person over the age 80, will rapidly decline in the near future.  In 2010, the caregiver support ratio was 7 to 1.  In 2030, four years after the first “baby boomers” turn 80, this ratio will be 4 to 1—and by 2050 this ratio will drop to 3 to 1.

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Consent, that is ‘notice and choice,’ is a fundamental concept in the U.S. approach to data privacy, as it reflects principles of individual autonomy, freedom of choice, and rationality. Big Data, however, makes the traditional approach to informed consent incoherent and unsupportable, and indeed calls the entire concept of consent, at least as currently practiced in the U.S., into question.

            Big Data kills the possibility of true informed consent because by its very nature one purpose of big data analytics is to find unexpected patterns in data. Informed consent requires at the very least that the person requesting the consent know what she is asking the subject to consent to. In principle, we hope that before the subject agrees she too comes to understand the scope of the agreement. But with big data analytics, particularly those based on Machine Learning, neither party to that conversation can know what the data may be used to discover. 

Nor, given advances in re-identification, can either party know how likely it is that any given attempt to de-identify personal data will succeed. Informed consent, at least as we used to understand it, is simply not possible if medical data is to become part of Big Data, and ever so much more so if researchers intend to link personal health records with data streams drawn from non-medical sources because what we will learn with the information cannot be predicted. Similar—indeed, maybe worse—problems arise with big data analytics uses outside the context of medical research, especially as informed consent seemed a plausible solution to the problem of routinized or non-existent consent for data acquisition.

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

            The use of Artificial Intelligence (AI) and care robotics are currently viewed as two separate branches of advancements in modern medicine. For now, AI and care robots are considered as advanced tools to augment the skills and intelligence of human professionals who provide most of the care. There will be a time in the not-so-distant future, when AI achieves general or superintelligence. Simultaneously, they will become more independent and mobile, while other specific medical devices/robots will become more miniaturized and advanced. In vivo, in vitro/prosthetics and other therapeutic robots will all likely become more advanced and prevalent.

Done right, AI will likely merge with robotics and these resulting care robots will have so much potential to enhance care. Envision the common use of robots as care providers throughout the human lifespan (e.g. nannies, companions/assistants, and other possibilities). This prospect is both exciting for some people, and terrifying for others. For better or worse, it is rather common for care robots to become ubiquitous at a rapid pace once they overcome the hurdles of reaching successful initial adoption.

In formal settings or institutions like hospitals, AI adoption is complicated and undertaken by a multi-disciplinary team. Outside of formal settings, AI adoption will be dependent on multiple variables. These variables may include but are not limited to: competition, government sponsorship or regulation, and an economy driven market. Once the shock value wears off and the care robots are found effective and safe, it is likely that the public will demand “the best, brightest and newest” care robot. Prohibitively expensive at first, care robot makers might still sell out and profit tremendously, much like the best smart phone or car companies of today.

Naturally, there already are or will be glaring issues before, during and after the “robot invasion”.  For healthcare in particular, these issues will include paramount concerns for patient safety and privacy. Reevaluating ethics for both humans (bioethics) and robots (roboethics) will also become crucial as more care robots are designed, produced and adopted. For these robots to be successful, a lot of care and caring will have to be taught to them by their human creators. These teachings will include what care looks like and how to provide it safely. The nursing profession and its theories of care can definitely be a valuable resource for care robot learning.

---

II. Fixity and the Inevitability of Our Constitutionalism?

I now turn to constitutional fixity, the concept that lies at the heart of my story. This subject is complex—not least because, as Sandy Levinson appropriately writes, fixity is “chimerical.” So it’s valuable to restate some central points. I argue that Founding-era Americans did not invent the idea of constitutional fixity, they reimagined it. Debates during the decade after ratification brought into focus a new idea of what defined a fixed constitution.

It is essential to grasp this point because, contrary to what is commonly thought, there was nothing new—not in 1796, 1787, or 1776—about thinking that a constitution ought to be fixed. Virtually everybody in the English-speaking world, for over a century and half, had assumed that their constitutions were fixed and that this was a good thing. Common law jurists like Sir Edward Coke had claimed that the English constitution was fixed. So too had leading seventeenth-century Parliamentarians like John Pym and Henry Parker and radical spokesmen who kept their dream alive like Algernon Sidney. Meanwhile, colonial Americans—whose own conception of the British constitution centered on the texts of their colonial charters—readily assumed that they were subject to a fixed constitution. If there was one thing that everybody could agree on, it was the fact that constitutions were fixed. This all might seem counterintuitive. Didn’t Revolutionary Americans invent the idea of a fixed constitution by choosing to write their constitutions down? Wasn’t the customary British constitution obviously unfixed, since it changed through evolving practice? From the perspective of our distinctive understanding of fixity those queries make perfect sense, but therein lies the point—from our perspective. And it is precisely that perspective, which marked such a rupture in the long history of Anglo-American constitutionalism, whose origins I set out to explain.

Before that perspective took shape, an older form of constitutional fixity reigned. And unlike its successor, it was fully compatible with prevalent notions of constitutional change. Most members of the seventeenth- and eighteenth-century English-speaking world—from Matthew Hale and William Blackstone to James Otis and Samuel Adams—assumed that constitutions were fixed but changing. When constitutions changed—due to evolving practices, common law adjudications, or constitutional crises—they did not drift away from fixed principles but more deeply converged on them. Dynamic change produced new constitutional understandings that simultaneously restored ancient constitutional meanings. Counterintuitive to us; obvious to them.

After independence, these habits endured. Americans wrote their new state constitutions, but those instruments naturally replaced the charters that had long centered their constitutional existence, so it seemed intuitive that the deeper constitutional principles those charters had incorporated persisted as well. Much changed between 1776 and 1787—and plenty of it, as I suggest, was revolutionary—but many basic constitutional habits endured. In this regard the federal Constitution was indeed fixed from the beginning—just as the British constitution, the colonial charters, and the state constitutions had been before it—but fixed in a way that we no longer easily recognize, and one that post-ratification debates helped make obsolete.

So what I chart in my book is not the birth of constitutional fixity itself, but the origins of a peculiar brand of fixity that made a previous brand of fixity look like anything but. That new form of constitutional fixity has endured in powerful ways. By stressing the new Constitution’s textual and archival character, and thus by circumscribing it in space and time, post-ratification Americans helped turn fixity and change from allies into antagonists. Ever since, Americans have largely operated in the space made of this opposition, opting to see the Constitution either as static and fixed or as dynamic and changing—as Sandy Levinson celebrates John Marshall for doing in his famous opinion in McCullough v. Maryland. In other words, only from the perspective of a new kind of fixity born in the 1790s did the enduring contest that treats originalism and living constitutionalism as warring alternatives become intelligible.

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Transparency: the theme runs through much of the conference.  Improvements in both data protection and access, as well as in algorithms and their use, are hoped for through increased access to data and to more transparency about how it is generated, collected, processed, and used.  In health care, contractual issues, liability, intellectual property protection, and outdated regulation contribute to lack of transparency.

Transparency for all health care data and software is not an unmitigated good. Autonomy and dignity, public health, patient care, biosurveillance, clinical and other scientific research, marketing, and innovation also require consideration.  However, more transparency in software, data, privacy, and regulation is needed regarding health information technologies.

Healthcare information technology is based on complex software systems comprised of numerous algorithms, so concerns surrounding algorithmic transparency apply to their use in health care.  Explanability, testability, understandability, identifiability of inherent biases or outright errors, correctability—all are compromised without transparency.

This problem affects systems such as electronic health record  (EHR) systems for ordering, communicating, storing, and retrieving clinical information about each patient.  EHRs are built of algorithms.  Consider medication orders.  Ordering a medication through an EHR can involve automated dosage calculations based, in part, on the patient’s weight. The calculation may seem straightforward, though there can be errors due to incorrect input, malfunctioning software or hardware, inconsistencies in how and where weight or medication are recorded, and erroneous formulas, none of which may be transparent.  Similar opaqueness characterizes predictive algorithms used for ICU bed allocation, patient monitor alert systems, and forms of decision support ranging from vaccination reminders to differential diagnosis.

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Suicide is a global problem causing 800,000 deaths per year worldwide. In the United States, suicide rates rose by 25% in the past two decades reaching 45,000 deaths per year. Suicide now claims more American lives than auto accidents. Traditional methods of predicting suicide, such as questionnaires administered by doctors, are notoriously inaccurate. Hoping to predict suicide more accurately and thereby save lives, hospitals, governments, and internet companies have begun developing artificial intelligence (AI) based suicide prediction tools. This essay analyzes the risks these systems pose to people’s safety, privacy, and autonomy, which have been underexplored. It concludes with recommendations for minimizing those risks.

Two parallel tracks of AI-based suicide prediction have emerged. On the first track, which I call “medical suicide prediction,” doctors and hospitals use AI to analyze patient records. Medical suicide prediction is mostly experimental, and aside from one program at the Department of Veterans Affairs (VA), it is not yet widely used. Because medical suicide prediction occurs within the healthcare context, it is subject to federal laws, such as HIPAA, which protects the privacy and security of patient information, and the Federal Common Rule, which protects human research subjects.

My focus here is on the second track of AI-based suicide prediction, which I call “social suicide prediction.” Though it is essentially unregulated, social suicide prediction is already widely used to make decisions that affect people’s lives. It predicts suicide risk using behavioral data mined from consumers through their interactions with social media, smart phones, and the Internet of Things (IoT). The companies involved, which include large internet platforms such as Facebook and Twitter, are not generally subject to HIPAA’s privacy regulations, principles of medical ethics, or rules governing research on human subjects.

How does social suicide prediction work? As we go about our daily routines, we leave behind trails of digital traces that reflect where we’ve been and what we’ve done. Companies use AI to analyze these traces and infer health information. For instance, Facebook’s AI scans user-generated content for words and phrases it believes are correlated with suicidal thoughts. The system stratifies posts into risk categories, and those deemed “high risk” are forwarded to Facebook Community Operations, which may notify police who perform “wellness checks” at users’ homes. In 2017, Facebook announced that its system had prompted over 100 wellness checks in one month. Its affiliate Crisis Text Line, a text-based counseling service targeted at children and teens, reports completing over 11,500 wellness checks at a rate of 20 per day. In addition to its standalone service, Crisis Text Line is embedded within other platforms such as Facebook Messenger, YouTube, and various apps marketed to teens.

No author, let alone a first-time author, could ask for anything more than this rich and rewarding symposium on my new book, The Second Creation: Fixing the American Constitution in the Founding Era. Each of the commentators—all distinguished constitutional scholars—have charitably entered into the spirit of what I was trying to do in the project and have thoughtfully engaged with what I had to say. I am gratified that so many of them think the book makes important contributions to our understanding of the early Constitution. And I am just as appreciative of the substantive ways in which they have complicated or challenged aspects of my argument. My deepest thanks to all of them for launching such an illuminating conversation.

I am especially pleased that these commentators have drawn out the implications of my arguments for modern debates over constitutional theory and interpretation. This comes as no surprise since the symposium, by design, pulled together legal scholars working in these particular areas. As a historian, I set out principally to write a history of the early Constitution, not a work of constitutional theory. And while I certainly wrote the book in the hope that the former would hold important implications for the latter, because my primary focus was on constructing a coherent and compelling interpretation of the American Founding, I did not explicitly or extensively foreground my understanding of the book’s connections to modern constitutional debates. Because, as Bernadette Meyler notes, I leave many of these “links largely unstated,” I assumed that others might draw different conclusions from me or productively extend my findings in ways I had not anticipated. Many of the commentators have done just that, so in addition to offering a chance to respond to specific challenges raised in the reviews, this response also affords me the opportunity to speak more concretely about what I take to be the book’s implications for debates over constitutional interpretation.

The commentaries cover a lot of ground, but there are a handful of topics that dominate the discussion. Accordingly, I will focus my remarks on a few important issues: the study of constitutional language, the meaning of constitutional fixity and the necessity of our brand of constitutionalism, and originalism. I am not surprised that readers kept returning to these themes, as they were the issues I spent the most time struggling to understand. Elaborating on them is the best way to push the conversation forward. I will consider each of these three issues in distinct installments.