Constitution Breakdown #9: Alondra Nelson

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Constitution Breakdown

1:11This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars. And I'm Elizabeth Jo. Today, we're discussing Articles 6 and 7. Roman, why don't we go through both articles, and let's save the most important part for last. Okay, because there's a lot of unimportant parts. Less important. Go for it. So, why don't we start with Article 7? That's the ratification clause. Okay. Maybe the least important to talk about today, but actually crucially important for the Constitution itself. Yeah, yeah, sure.

1:42We needed these states to vote on it, and the ratification clause says that nine states would be enough to ratify or make the Constitution itself a legitimate document. Yeah. So, that in fact happened. It comes into effect on June 21st, 1788, when New Hampshire became the ninth state of the 13 to ratify the Constitution. So, it kind of has its own clause to make sure the document is legit. Got it. Yeah, that makes sense. Okay. Yeah, so that's pretty clear. No real important Supreme Court cases on it.

2:12So, let's turn back to Article 6. Okay. Article 6 is a mishmash of a bunch of different things. So, Article 6, Clause 1 talks about debts that the United States is already obligated for and still has to pay. And so, why is that there? Well, you know, when the Constitution was drafted, the country still had debts and engagements that were left over from the Revolutionary War, and creditors were kind of nervous. What if you create a Constitution that wipes out all of the debt?

2:44That would be pretty convenient. Got it, got it. So, in order to assuage those nervous creditors, this Constitution, our Constitution, actually says, don't worry, we understand that we have these debts and we are going to pay these debts. So, today it's really mostly a historical interest. It doesn't come up because we did, in fact, pay our debts. I will say what is interesting is that from Clause 1, originally, as it was drafted, the clause said that the United States would both be obligated to pay the debts

3:14and would have the power to pay the debts. But that second part got taken out of Article 6 and put into Article 1 as part of Congress's spending authority. So, that very, very important part today is actually in the larger chunk of the Constitution we cite all the time, which is why does Congress have the ability to pass laws? And very often, it's because of spending authority. Wow. Well, that's really fascinating, actually. Yeah, so, you know, one little switch around made a big difference. Yeah, made a huge difference. Okay, okay, so that's the first clause.

3:45Okay, let's turn to Clause 3 of Article 6. Do you want to read it? Okay. The senators and representatives before mentioned and the members of the several state legislatures and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation to support this Constitution. But no religious test shall ever be required as a qualification to any office or public trust under the United States. So, this is known as the no religious test clause. Great.

4:16I like this clause. Exactly. It's kind of a, you know, no religious test for anybody taking office. And in fact, it's the absence of religious tests that makes us understand that this is successful, right? We don't require anybody to take a religious test. Yeah. But sort of, at least formally, right? I mean, there's no formal test, but you can kind of feel it in there, the fact that the representation of other religious faiths is not super common inside of our public institutions. True, true. But there is a big difference when you were formally required to do it. And in fact, this clause comes from traditions

4:48going back to England. So, for instance, in England in the 17th century, for example, all government officials had to take an oath that they would help establish the Church of England, also disclaim Catholicism and the Pope. And so, the idea is we have this common law tradition. It comes from England. By the time you have the colonies and the Articles of Confederation, it was pretty common for government officials to be told that they had to take some kind of religious affirmation.

5:19Of course, not for the Church of England, but some kind of, I believe in God sort of test. It's notable that it's absent. It's notable for its absence. And this clause as well has very little in terms of Supreme Court interest or case law today. And that's for a totally different reason. You'll notice this is about, you know, religious freedom, essentially, right? It shouldn't matter whether you are a practicing Catholic or a Muslim or Jew to be able to take a public office. But the reason why this clause doesn't get much attention is that's because free exercise clause cases today

5:51come up under the First Amendment, right? Rather than this clause. So, not too much there as well. Yeah. So, I noticed in our recap, you had Article 6, Clause 1 and Article 6, Clause 3, but we have skipped Article 6, Clause 2. So, what is that? Well, Article 6, Clause 2 contains what's called the Supremacy Clause. Why don't you read it? Okay. This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made

6:22under the authority of the United States shall be the supreme law of the land. And that's referred to as the Supremacy Clause. So, why is the Supremacy Clause so important? Well, historically, the Supremacy Clause responds to a very particular problem. And that is, before the federal constitution, the Articles of Confederation, which was the predecessor document, had no similar provision saying that federal law is supreme. And you might wonder, well, what does that really mean? Well, think of it this way. If you have state laws on a topic

6:53and federal laws on the exact same topic, which one are you supposed to follow? If there's no clear instruction, well, maybe you just follow whichever one you want. And that's kind of what happened. Before the constitution, state courts sometimes just didn't think that federal law was binding, so they didn't apply it. They applied state law. That's kind of a problem, right? Yeah. So, the Supremacy Clause, just with one fell swoop with this particular clause, gets rid of that uncertainty or ambiguity. The Supremacy Clause simply says,

7:25look, federal law, whether we mean the constitution, federal statutes, federal treaties, are supreme when it comes to any conflicting state law. So, the idea here is that you have this very important structural part of the constitution, that federal law is supreme. So, what does that mean, practically speaking? Well, what that means is, if you can think of supremacy as stating the simple fact that federal law is supreme, but arising out of supremacy

7:55is the idea that Congress now has the power when it legislates to preempt, or that really means displace or override any contrary state or local law. So, you can think of preemption as being based in the constitutional power of supremacy. So, Congress doesn't have to exercise preemption, but when it does pass laws in this way, it's very clear that any directly conflicting state or local law has to give way. So, that's kind of the genius or the simplicity

8:26of the Supremacy Clause. But that's the most simple part of the Supremacy Clause. And I take it, there's lots of constitutional case law based on the Supremacy Clause. That's right, because things can never be simple, right? Yeah, yeah. So, when you think about federal law, sometimes Congress can simply say, we're going to pass a law and this law will, in the text of the law itself, displace or preempt any similar state law. That's pretty easy. And if that were the only issue, we'd never talk about preemption, right?

8:57But the problem is that Congress very often doesn't say. There may be a federal law on a topic and a state law on a topic, and the federal law doesn't say anything. So, in response, the Supreme Court has come up with a whole host of cases, doctrines, tests, ways of thinking about federal preemption to try and answer the question, what happens when it seems like there are federal and state laws legislating on the same topic?

9:28So, what exactly is supposed to happen when there's a conflict? Well, that also is a complicated answer. So, it depends on what we're talking about. Sometimes courts will say something like, you know, there are some areas of federal law where the federal interest is so important, so extreme, we don't want the states to get involved a little tiny bit even, even if Congress hasn't specifically spoken to that area. So, an interest like this would be foreign policy. We don't want the states to get involved with foreign policy, negotiating their own treaties.

9:58That would be a bad idea. That would be a bad idea. Exactly. So, those are the easy cases. But the much more frequent and difficult cases are sometimes courts have to answer, well, there's a federal law on a topic and a state law on the topic. Is it possible to comply with both state and federal law? If it's possible, maybe there is no preemption. No preemption would mean that state law and federal law are both valid. But, for instance, if there is a way in which the state law is an obstacle

10:30for the federal government's law to operate, or whether it's literally impossible, state law says black and federal law says white, you can't do both at the same time, then that's a case of federal preemption. So, these are always case-by-case determinations. But preemption is actually really important because if you think about all of the different areas in which the federal government regulates, everything from the environment, consumer protection, energy, you name it,

11:00the states also often legislate in the same areas. And what you will have are individuals or companies that say, well, I want to comply with one, I don't want to comply with both, or am I supposed to comply with both? And that gives rise to preemption. So, of all of the areas of law that we've talked about with the Constitution, in fact, preemption is probably the most frequently used constitutional law in practice. Wow. So, on the one hand,

11:31you can think of constitutional law in the courts as being on a spectrum, right? Like, maybe we'd put impeachment at one end, right? We don't talk about it in the courts. And then preemption all the way at the other. Preemption comes up all the time because the idea of federal preemption is that it's a possible question any time the federal government is regulating in a particular area. Right, right. Which could be infinite, almost. Almost infinite. That's right. Every single area of modern life where the states regulate

12:01very often, though not always, of course, very often, the federal government is also regulating. And this situation is exacerbated by the fact that modern life continues to go on. Like, there's new laws coming up all the time because there's new technology all the time and there's new things all the time to consider. That's right. So, whenever you have a new policy problem, a new change in society, there's a race to regulate it or at least calls to regulate that new development in modern life. So, the question is, are states going to do that job? Should the federal government do that job?

12:32Or should they both do that job? So, one way to think about the problem of preemption is for us to pick an emerging area where both the states and the federal government are trying to regulate at the same time. And I think there's no better topic than artificial intelligence. Totally. Totally. I mean, that's, like, huge. I don't even know what I think of it. That's right. So, I can't even imagine what states and the federal government are thinking about it at this point. That's right. Artificial intelligence is everywhere. It's at the doctors,

13:02it's at the store, it's at school, it's at work. It's kind of a huge problem for government. And that's because AI has the potential to produce these really big benefits for society. But we've already seen that it can have all kinds of harmful effects. It can produce all kinds of major risks for society. You know, everyone's heard of AI makes up facts that don't exist, that people believe and sometimes act upon. Or it can make decisions about people that are really hard for us to explain and sometimes those decisions

13:33are false or misleading. Yeah. So, just like any other problem in society, the states and the federal government are trying to figure out how do we regulate AI or AI systems? And that means everything from how do you regulate it a chatbot that teenagers use or self-driving taxis or how do you regulate autonomous weapons when it comes to wartime? Oh my God. And so, what kind of level of government should be regulating AI and so should the states get out of the way

14:03all together?

14:07Now, this seems like a very current topic and it is, but the larger picture is an old one and that's a question of federalism. So, the narrower view we have of preemption, we're really allowing the states to engage in more experimentation for the states to say, hey, we want to try this approach and California will always take an approach that probably Texas will not, right? And vice versa. Sure. But a very broad view of preemption really is saying, you know what? We want the states

14:38to just get the heck out of the way. We want the federal government to be the primary voice in this area. So, those are choices that courts have to make. There's nothing obvious about going in one direction or another. Yeah, yeah.

Artificial Intelligence

14:52Because this is a fast-moving and complex topic, our guest for this episode is Dr. Alondra Nelson. She's a scholar of technology and social science and a leading expert on artificial intelligence. She currently holds the Harold F. Linder chair at the Institute for Advanced Study in Princeton. She also served in the Biden administration as the acting director of the White House Office of Science and Technology Policy. It was in that role that Dr. Nelson spearheaded what's called the blueprint for an AI bill of rights.

15:22We invited her to help us navigate why it's a challenge to regulate and what to think of the tug of war between the states and the federal government on the topic, especially during the second Trump administration.

Regulating AI

15:33But we start

Regulating AI

15:33with Alondra's definition of what exactly AI is.

15:39So, you know, I usually use a modified version of the OECD definition, which is a definition that kind of 38 nation states have agreed upon. But, you know, and it's basically that these are like machine-based systems, like lots of statistics, lots of math, and that they use, they make inferences. So, from different inputs and they generate outputs. And so, the outputs are things like, you know, so-called predictions. They are things like recommendations,

16:09like your Spotify, you know, music recommendations or your Netflix recommendations. And I like to use those two examples because, you know, people have different feelings about how good or bad they think their net stream in Spotify is. And I think that's kind of a level set for AI. You know, decisions. So, there are, you know, machines that are helping, you know, if we think about the theater of war, decisions about targeting people, locations, and the theater of war. And, of course, with generative AI, AI tools and systems generate content. So, texts and images

16:40and sound. So, that's kind of, you know, inferences made from different sets of inputs, almost all sort of data, whether those are photographs or numeric data or, you know, quote, unquote, all of the internet that was taken into generative AI and lots of different outputs. So, you cross-cut that with the fact that AI systems have, like, different levels of autonomy and adaptiveness after they're deployed. So, some can be very static, like, you know, a decision-making or predictive algorithm

17:11that might be used in the criminal legal system is taking in data and, you know, it has a sort of hardwired data set that it's sort of making so-called predictions against. And, obviously, today, we increasingly are being told about things like open claw and AI agents. And so, these are more autonomous kind of AI systems that are, you know, making purchasing decisions for people, coding for them and the like. So, that's a broad

17:42definition on purpose because AI is really broad. And we, I think we go back and forth from using generative AI as the default for what we mean by AI, but it's this whole suite of things. And if you talk to, you know, a computer scientist or an AI or machine learning engineer, they would say to you, that actually, you know, if you think about AI, the world of AI as sort of a set of Russian nesting dolls, that generative AI is actually, you know, the smallest, right? You've got deep learning,

18:12you've got machine learning and all of that. So, because generative AI with things like chatbots have been made consumer-facing tools and that's really how AI came into the public sphere, that's kind of how we think about AI, but there's a lot of other use cases and types and autonomous and more brittle, et cetera, besides. Yeah, so I think, you know, when you hear this, it's like a pretty technical set of definitions and products, but I suppose if you're listening to this conversation, maybe someone might think,

18:42well, I'm sort of familiar with maybe ChatGPT that came out in 2022, I've used it a couple of times, but like, I really want to know, like, why should I care about this? So what for you are some of the most transformative or really concerning examples of AI that are happening in American society right now? So the why should I care is, you know, I think people every day, particularly folks in companies, oversell AI, so that's certainly true. So what might be transformational?

19:14Some of the claims, you know, the AI for good claim are true and I think are on the, either happening or on the horizon. So you can think about in the medical space like an AI system reading chest x-rays or being able to flag kind of an early stage kind of cancer diagnosis, being able to see, you know, a tumor in its very early stages. So that's transformative and indeed, you know, if we get that right, life-saving, it is the case that we still need radiologists and we don't have enough of them. So transformational,

19:45but transformational in potentially in the intersection of humans working with the AI. right? So, you know, other cases certainly are like in agriculture. So you can, they're farmers, whether it's sub-Saharan Africa, Kansas in the United States are using forms of computer vision, forms, you know, on a phone app that can help them identify, you know, whether or not a crop is being blighted. We're using already kind of AI and for traffic flow and try to sort of direct traffic

20:15and kind of retime stoplights. So, you know, you can cut commutes or you can redirect traffic. So when these are all, as to go back to my definition, they're all systems that take an image or a data pattern or a question, make an inference and generate an output that, you know, hopefully helps to augment when humans are doing, maybe improve what humans are doing and maybe to help humans make better decisions. So those are, I think, cool things. I mean, we just have been watching Artemis 2. You know, that is full of AI computer

20:46simulations that help them to track how they were going to do this incredible 10-day journey. Also cool. Concerning, you know, we're living with a lot of that right now. You know, we've got this kind of great race happening in the world of, you know, looking for a job, right? So you can now more easily do your resume and your cover letter using AI, but now AI systems are being used to screen your resume out. So, like, people are now sending dozens and dozens of resumes out on a given day

21:16and they're getting screened out right away. So the downside of this is that it might filter out, you know, people out of an applicant pool before anybody ever sees your name or anybody ever, like, actually looks at your credentials and nobody will tell you why potentially. There's some research that suggests because, you know, again, as you talk about input data and making inferences from that and things like employment, a lot of the input data is historical data. So, you know, in fields

21:47in which you've had historic racial discrimination or gender discrimination, like if you're looking for the resume of an excellent computer scientist, then, you know, a lot of algorithms have been shown to sort of kick people out. So you're like, people are losing access to opportunities with real implications for their liberties and their rights. there's, you know, so-called predictive policing tools that the algorithm says that you should police it more because it's been policed more historically, not because there's

22:17actually new information suggesting that that should be the case. And then in the generative AI space, because I live partly in New York City, the Adams administration spent, you know, nearly, I think, a million dollars on this government chat bot, this NYC bot or NYC chat that was supposed to, you know, the idea of it was good. It was supposed to help, like, small businesses navigate all sorts of city regulations, which in a place like New York City, they're voluminous. But it was telling them to violate the law.

22:48So it was giving advice like that, you could, like, how to skim workers' tips, how to discriminate against your tenant if you're a landlord. I mean, it was fairly outrageous and, you know, I think well beyond the kind of whimsical term, you know, hallucination that we use that, you know, often suggests that it's not a really big deal. And, you know, we shouldn't be surprised that I think the Mamdani administration, I think, canceled that contract and got rid of the chat bot. But the concerning aspects, I think, also just give you a sense of, like,

23:18all of the places in our lives, all of the sites simultaneously that are being shaped in some way by some form of kind of algorithmic decision-making or management. Yeah. And I guess one of the ways to approach that, right, is to say not just like, oh, these are technical problems, but since you're mentioning, like, all of the different ways that individuals might feel powerless or just confused about what's going on, you can kind of use a civil rights approach. And, you know, and of course in the Biden administration, you led the OSTP

23:49and you're credited with directing the White House blueprint for an AI Bill of Rights and I would love for you to talk more about that. There is a, you know, this is a policy paper, it's a white paper. So, what was the process? How did you begin creating the blueprint? Like, who was behind it? Who did you talk to? Yeah. So, it was, you know, we came into office in the middle of a pandemic and we came into office as a country having a racial reckoning. We were having an economic crisis

24:19and, you know, I think those of us who work in the science and technology policy space knew both on the research side and also kind of saw brewing amidst all of these kind of societal concerns like what was going to be happening in the algorithmic space and we all, you know, we were having already examples. So, for example, the YouTube videos about the, you know, the so-called racist soap dispensers and faucets. Oh, right. You know, if you have darker skin you can't get the soap to come out which is a kind of application of AI.

24:51And, you know, and I had the idea to do, in part, I think, you know, borrowed from lots of other examples. I mean, the Obama administration accompanied its Affordable Care Act with something called the Patients Bill of Rights. I think Ralph Nader had a Consumer Bill of Rights. So, the Bill of Rights has been used, you know, variously both by government and in folks in civil society as a way to sort of think about a rights expansion in the face of kind of a new technology or a new social dynamic, for example. So, we got into office

25:22by October of 2021. We published an op-ed and Wired that came out in October of 2021. And we sort of used the Bill of Rights framing and we kind of tried to draw a parallel to the country's founding and noting that there was this time, you know, in the 1780s and 90s that Americans adopted the original Bill of Rights to guard against really a power, they just created this powerful government, right? We're about to celebrate the 250 years of the Declaration of Independence and then the Constitution.

25:53Like, we had created this kind of powerful government technology and that we needed to place a check on that. So, how did you secure our rights and our liberties, our opportunities in the context