Liberties There's nothing Artificial about our Intelligence

What is happening on the Supreme Court of the United States?  The Court has overruled Roe v. Wade. It has rejected the whole idea of a right to privacy. It is sharply restricting the ability of federal agencies to protect safety, health, and the environment. It is limiting voting rights. It is expanding the rights of gun owners, commercial advertisers, and those who wish to spend a lot of money on political campaigns. It is moving very quickly, and almost always in directions favored by the political right.          None of this comes out of the blue. It is the culmination of four decades of intense work, meant to move constitutional law in exactly these directions — work by activists and scholars, politicians and lawyers-for-hire, corporate lobbyists and the National Rifle Association, religious organizations and the Federalist Society. It was a long process, but it seems fair to announce that they have finally won.          I received a firsthand sense of what was afoot in 2002, when I found myself in a large audience at the University of Chicago Law School, waiting to hear a speech by Douglas H. Ginsburg, who was then Chief Judge of the influential Court of Appeals in Washington, DC. Tall and thin, with a bemused and scholarly manner, Judge Ginsburg is an able and fair-minded judge. He is a generous and kind person to boot. He is also a graduate of the University of Chicago Law School, which was my home institution at the time. I like and admire him. But on that day I was flabbergasted by what I heard; actually I was appalled. Judge Ginsburg called for something like a constitutional revolution.    Judge Ginsburg contended that the Supreme Court abandoned the United States Constitution in the 1930s, when it capitulated to Franklin Delano Roosevelt and his New Deal. He sought to return to the Constitution as it was understood before the capitulation. Ginsburg began by emphasizing that “ours is a written Constitution.” Making a bow in the direction of populism, he contended that this observation is controversial in only one place: “the most elite law schools.” The fact that the Constitution is written has major implications. If judges are “to be faithful to the written Constitution,” they must try “to illuminate the meaning of the text as the Framers understood it.”  In Ginsburg’s account, judges were faithful to the Constitution for most of the nation’s history — from the founding period, in fact, through the first third of the twentieth century. But sometime in the 1930s, “the wheels began to come off.” In that period the nation faced the Great Depression, and President Franklin Delano Roosevelt tried to do something about it, above all with his New Deal, which greatly expanded the power of federal agencies, through, for example, the creation of the National Labor Relations Board and the Securities and Exchange Commission. Responding to “the determination of the Roosevelt Administration,” Ginsburg declared, the Supreme Court abandoned its commitment to the Constitution as written. How did this happen? Judge Ginsburg’s first example was Congress’ power, under the Constitution, to “regulate commerce . . . among the several states.” What does this mean? Judge Ginsburg referred, with enthusiastic approval, to the Supreme Court’s view that Congress lacked the constitutional power to ban child labor. But his strongest complaint involved the Supreme Court’s decision, in 1937, to uphold the National Labor Relations Act, which protects the right of workers to organize and to join labor unions. In upholding the Act, the Supreme Court said that when strikes occur, interstate commerce is affected. A strike in Pennsylvania often has a big impact elsewhere.  Judge Ginsburg objected that this is “loose reasoning” and “a stark break from the Court’s precedent.” But his complaint went much deeper. The Court’s acceptance of the National Labor Relations Act was not merely “extreme.” It was also “illustrative.” He objected that the Supreme Court has upheld the Clean Air Act, which, in his view, violates the separation of powers by granting excessive discretion, and hence legislative power, to the Environmental Protection Agency. Under the Constitution, legislative power rests in Congress; Judge Ginsburg said that because the Clean Air Act allows the Environmental Protection Agency to make the law, the “structural constraints in the written Constitution have been disregarded.”  But even this is just the tip of the iceberg. Since the 1930s, the Court has “blinked away” crucial provisions of the Bill of Rights. Of these, Judge Ginsburg singled out the Constitution’s Takings Clause, which says that government may take private property only for public use and upon the payment of “just compensation.” Judge Ginsburg complained that the Takings Clause has been read to provide “no protection against a regulation that deprives” people of most of the economic value of their property. In other words, the Court allows government to impose regulations, especially in the environmental area, that do not quite “take” private property but that much diminish its value. Judge Ginsburg objected that the Supreme Court has not required government to compensate people for their losses.  At the same time that the Court has “blinked away” the individual rights of the American Constitution, judges have manufactured new rights of their own devising. In his view, these rights are fake news. In this way, members of the Supreme Court have acted not as judges, but as a “council of revision with a self-determined mandate.” What does Judge Ginsburg have in mind? His chief objection was to the right of privacy. It seemed clear that he rejected Roe v. Wade.  But he went much further than that. He singled out the Court’s decision in 1965 in Griswold v. Connecticut, the foundation of modern privacy law. In that case, the Court struck down a law forbidding married people to use contraceptives. Judge Ginsburg objected that a judge “devoted to the Constitution as written might conclude that the document says nothing about the privacy of” married couples. The Griswold decision, he added, is “not an