REDRAFTING CONSTITUTIONS IN DEMOCRATIC REGIMES

Vol. 31 No. 3 (March 2021) pp. 73-76

REDRAFTING CONSTITUTIONS IN DEMOCRATIC REGIMES, by Gabriel L. Negretto, ed. Cambridge: Cambridge University Press, 2020 (Comparative Constitutional Law and Policy Series). 264 pp. Hardcover $ 110.00. ISBN: 9781108839846.

Reviewed by Raul A. Sanchez-Urribarri, Department of Crime, Justice, and Legal Studies, La Trobe University. Email: R.Sanchezu@latrobe.edu.au.

I write this review only a few days after an overwhelming majority of Chilean voters agreed to establish a Constituent Assembly in Chile via referendum (October 25, 2020). This exciting process of constitutional change is the most recent exercise of its kind in Latin America, a region that has seen many constitutions replaced in the context of democratic regimes, including through constituent assemblies convoked to those ends (Colombia, Bolivia, Ecuador, and Venezuela come immediately to mind). The Chilean experience arrives at a time when reflections about the benefits and risks of constitutional reform are publicly discussed by different stakeholders. These discussions are happening as awareness increases about the fact that constitutional reform is not necessarily a panacea (or a curse) and that its effect on the consolidation and overall quality of democracy varies. Each country has its own experience that deserves to be weighed and analyzed on its own, but there is also cumulative comparative knowledge that can be developed about how these processes work, under what conditions, and to what effects across different cases. Studying constitutional change in a comparative perspective has become a growing interdisciplinary subfield with exciting theoretical debates informed by empirically rich analyses that capture the complications and nuances of a wide range of cases.

REDRAFTING CONSTITUTIONS IN DEMOCRATIC REGIMES is a thoughtful, well-assembled volume that succeeds in building on prior scholarship and, at the same time, propelling new debates in key areas of constitutional reform. Editor and author Gabriel Negretto – one of the most notable scholars in the field – has drawn on his own work over the years to develop this compilation of original contributions from fellow leading comparative constitutional reform scholars and practitioners. Whilst most of these contributions are anchored in comparative constitutionalism or comparative politics, they speak to and are informed by debates in other fields – including political theory, social theory, and law – thus expanding the book’s appeal and usefulness for a broader audience.

With regards to the book’s content, its main goals are “to provide a conceptual map and a comparative framework of analysis to understand the different alternatives available to channel these (constitutional replacement) processes, the consistency of these alternatives with the principles of democracy and constitutionalism, and the possible conditions that determine whether a constitutional replacement may result in the strengthening or weakening of democracy” (p. 1). The volume seeks to approach in a theoretic and systematic fashion a range of questions of constitutional reform. Such questions include: debates on the doctrine of constituent power and its applications; the tension between elite-driven and participatory approaches to constitution-making and reform; the links between constitutional reform and the broader socio-political processes at play; the disparate roles and influence of different actors on the dynamics and success of constitutional reform; different patterns emerging [*74] from consensual v. majority-driven politics of constitutional change; the advantages/disadvantages of different institutional solutions and arrangements regarding issues of timing, form, composition, deliberation, drafting, adoption and implementation of constitutional norms; the role of constitutional courts and other institutions of judicial adjudications in the different stages of the process, and other questions that typically arise in constitutional reform. Special emphasis is paid to constitutional change in the context of democratic societies. It also draws lessons that are applicable to other circumstances such as post-conflict societies or regimes transitioning from authoritarianism to democratic rule.

AMERICAN CONTAGIONS: EPIDEMICS AND THE LAW FROM SMALLPOX TO COVID-19

Vol. 31 No. 3 (March 2021) pp. 69-72

AMERICAN CONTAGIONS: EPIDEMICS AND THE LAW FROM SMALLPOX TO COVID-19, by John Fabian Witt, Yale University Press, 2020. 184 pp. Hardcover $20.00. ISBN13 978-0300257274.

Reviewed by Andrew Latham and Patrick Schmidt, Department of Political Science, Macalester College, St. Paul, MN. Emails: latham@macalester.edu and schmidtp@macalester.edu.

In a widely reported November 2020 speech to The Federalist Society, Justice Samuel Alito offered a blunt assessment of the state of civil liberties. Beyond the enduring debates over First Amendment freedoms, he claimed that the COVID-19 pandemic “has resulted in previously unimaginable restrictions on individual liberty.” The “indisputable fact,” Alito continued, is that “we have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020” (Golder 2020).

As novel as our current circumstances might seem, neither pandemics nor concomitant restrictions on personal freedoms are new in the United States. Indeed, disease—smallpox, syphilis, yellow fever, malaria, cholera, typhus, influenza, polio, HIV/AIDS—and draconian public health responses have been an enduring and ubiquitous feature of the American experience since colonial times. The first-rate historians who are laboring to understand COVID-19 in the longue durée offer a perspective that can act as a palliative, if not a cure, for the present moment.

In his short book, AMERICAN CONTAGIONS: EPIDEMICS AND THE LAW FROM SMALLPOX TO COVID-19, John Fabian Witt narrates America’s response to our persistent microscopic adversaries. In his account, we have more to chronicle than a battle of doctors and scientists. Rather, Witt has turned his Spring 2020 lecture at Yale Law School into a “citizen’s guide” to how law and politics in the US have in no small measure been shaped by contagions, trusting that “people who know their history make better choices” (p. 8). The history he wishes to tell is robust and dynamic, where “new germs help make new laws and institutions, yet old ways of doing things shape the course of epidemics and the ways in which we respond to them” (p. 11).

The first two chapters frame the dialectic between the imperatives of public interest and personal freedom, between public health and civil liberties. This tension has been vivid in our daily lives for the past year in the contentious debate over masks. Witt’s conceptual tool kit is to explain the choice in public health policies between sanitationist and quarantinist responses. The former includes liberal measures such as education, improved social conditions, and voluntary efforts that “produce a politics...focused on individual rather than social responsibility” (p. 23). These initiatives have flowed, sometimes from a progressive impulse to improve the physical and human infrastructure of society, and sometimes from a reactionary one emphasizing the depravity and filth of the working poor, whose labor was necessary but best kept at a distance from the well-heeled. By comparison, quarantinism doesn’t hide its mechanisms of control, using coercive means to force [*70] lockdowns and limit movement. Originally, reflecting the historical European practice dating from the time of the Black Death, ports were understood as gateways for disease vectors, but quarantinist practices later moved inland as well.

The shared assumption of both approaches is that public health measures should occupy the field. By Witt’s account, public health indeed has usually triumphed: as in Cicero’s words, “salus populi suprema lex esto” (the health of the people is the supreme law). It isn’t too far into the volume that it becomes apparent how our present coronavirus landed amidst a partisan environment with a strong vein of libertarianism, where a significant group found an appealing synergy between keeping government on the sidelines and pursuing herd immunity. The burden of that strategy falls disproportionately on historically disadvantaged communities and people of color. Reading Witt, libertarians might point out the hazards of state intervention. So very frequently, the American response to pandemics has exerted “authoritarian and discriminatory control over people of color, the poor, and immigrant newcomers” (p. 26). The episodes and anecdotes of the first two chapters bear witness to a long history of severe and invidious public health measures.

HOW TO SAVE A CONSTITUTIONAL DEMOCRACY

Vol. 31 No. 3 (March 2021) pp. 65-68

HOW TO SAVE A CONSTITUTIONAL DEMOCRACY, by Tom Ginsburg and Aziz Z. Huq. Chicago and London: The University of Chicago Press, 2018. 295 pp. Paper $35.00. ISBN-13: 978-0-226-56438-8

Reviewed by Giovanni LoPiccolo, Department of Political Science, Rockefeller College of Public Affairs at the University at Albany. Email: glopiccolo@albany.edu.

“Democracy is like a streetcar: You ride it until you arrive at your destination, then you step off” said Recep Tayyip Erdogan of Turkey in 1996 (p. 68). Democratic nations are a spectacle of human social innovation. They generate new cultures, norms, institutions, and practices wherever they arise. But for every inch of change, there are forces at work that seek to undo it all. The concept of democracy is broad; it can be defined as just involving voting, while others say it involves specific institutions. At the pinnacle of the various forms of democracy is the liberal constitutional democracy (LCD), a specific terminology outlined by authors Ginsburg and Huq in their aptly titled book, HOW TO SAVE A CONSTITUTIONAL DEMOCRACY. The premise of this book is that we are witnessing a trail of anti-democratic initiatives all over the world, fulfilling the interests of self-serving individuals and groups, and that these initiatives are seeping into the United States of America.

It would be naive and even inappropriate to claim that the United States of America is the greatest liberal constitutional democracy in the history of the world, and this book helps readers realize that. This isn’t, however, a book attacking the United States’ political structures, institutions, and methods. Ginsburg and Huq show readers, and all citizens alike, that we need to give attention and care to democratic values — not only here in the United States, but for people living in other LCDs.

From the anti-black voting laws enshrined in the American South after the Civil War to the consolidation of Nazi power in Germany in the 1930s to the self-initiated coup in Venezuela more than a half century later, Ginsburg and Huq make it clear that forces at play are always seeking to undermine democratic values and institutions. The authors’ particular contribution is to show the sheer speed with which a democracy may collapse. For instance, in the years leading up to World War II, the federal German legislature was burned down by an arsonist. The Nazi Party took advantage of this moment, declaring that it was time for change in not only the legislature, but Germany as a whole. New laws were enacted that made bypassing the legislature far easier and more streamlined in terms of issuing proposals and changes. Even the act of extending the German Chancellor’s term was done in the name of government efficiency (p. 36). As the authors illustrate, passing laws critically changing the makeup of legislating and law enforcement bolsters anti-democratic forces. The authors take up similar cases, including Hungary, the Czech Republic, Poland, Venezuela, and China. These examples further emphasize the dangers of loosely describing what democracy is and how anti-democratic forces can take a firm grasp over a nation.

By looking at over half a dozen countries from a time period extending as far back as the United States’ founding and as recently as the 2010s, Ginsburg and Huq [*66] offer a qualitative outlook on how LCDs are in decline, and essentially, are always at war with anti-democratic actors. The authors selected these seven countries based on their relevance to American political problems, even if they aren’t fully considered LCDs. The authors show that the former Soviet countries of Eastern Europe each dealt with varying degrees of leadership-seeking in times of crises. This isn’t something with which the United States is unfamiliar, having endured the Great Depression, the Civil Rights era, and the War on Terror. Moreover, places like Hungary, Poland, and even Venezuela entered phases of economic and societal despair, with its people looking for any solution to the crises. One attractive solution to crises for voters has been the election of radicalized, populist leaders. The China example brings in a more grounded point of comparison when deliberating the presence versus quality of democracy, paving the way for further illuminating the concept of liberal constitutional democracies.

The authors’ choice to investigate these questions through qualitative analysis was wise. The detailed case studies help to illustrate how democratic decline occurs. The authors’ research considers the significance of both pro and anti-democratic actors, their support among citizens, and how fast they get to power. Anti-democratic forces operate all over the world, but Ginsburg and Huq successfully operationalized the concept of anti-democracy to refine it to a manageable scope. Such operationalization involved the examination of national elections and party leaders’ methods of public outreach. A great example of this is in Hungary in the 1990s. Viktor Orban was a populist, democratic speaker who fought to remove the old establishment politics in Hungary and to usher in reform. He had a famous motto, “Don’t trust anyone over thirty-five.” The power vacuum left by the Soviet Union’s demise opened a window of opportunity, not only for Viktor Orban in Hungary, but for other pro-democratic forces in Eastern Europe. Ginsburg and Huq’s examination of how key political figures behaved and garnered support among their constituents gives us readers a more in-depth look at this battle between anti and pro democracy.

The authors did conduct some quantitative research, using quantitative metrics to identify democratic nations to analyze in the first place. They consulted the Polity IV index, a data series that codes the level of democracy in countries around the world. Nonetheless, this book’s primary agenda is to dive into the histories of the selected countries, looking at moments of political turmoil where change is about to occur - or where masses of people are mobilized - to offer greater insights about the dynamics of democratic risk and failure.

FRAMING THE SOLID SOUTH: THE STATE CONSTITUTIONAL CONVENTIONS OF SECESSION, RECONSTRUCTION, AND REDEMPTION, 1860-1902

Vol. 31 No. 3 (March 2021) pp. 60-64

FRAMING THE SOLID SOUTH: THE STATE CONSTITUTIONAL CONVENTIONS OF SECESSION, RECONSTRUCTION, AND REDEMPTION, 1860-1902, by Paul E. Herron. Lawrence: University Press of Kansas, 2017. 376pp. Paperback $26.95. ISBN 978-0-7006-2436-2.

Reviewed by David Ferkaluk, Department of Political Science, University at Albany, State University of New York. Email: dferkaluk@albany.edu.

When one hears the term “Solid South,” it might bring to mind certain historical figures, such as George Wallace; it might bring to mind certain historical movements or infamous institutions, such as the Civil Rights movement, or Jim Crow. Traditionally, “Solid South” referred to the political bloc of white Democrats that ruled the South for the better part of a century (p. 14). However, Paul Herron employs the term differently in his new book, FRAMING THE SOLID SOUTH: THE STATE CONSTITUTIONAL CONVENTIONS OF SECESSION, RECONSTRUCTION, AND REDEMPTION, 1860-1902. By “Solid South,” he means a “consolidation of political purpose and destiny against other regions and the federal government, along with the dominance of conservative ideals” (p.15). His definition permits him to make two simultaneous arguments. His first and more explicit argument states that the infamous, monolithic identity of the South took decades to establish, originating in the state conventions following secession, on the eve of the Civil War (pp. 5, 8).

His second argument is less explicit, given its generality regarding the importance of state constitutional conventions (SCCs). Essentially, SCCs offer an opportunity for states to establish and adopt a political culture and rules of the political game which, at least in the case of southern states, stood in contradistinction to the political culture and rules established by the US Constitution and the Declaration of Independence (p. 17). With an American Political Development (APD) lens, Herron traces the origin and development of the southern institutional political identity that would subsequently dominate Southern politics for several decades into the twentieth century.

Herron’s book is wonderfully transparent and clear in terms of his argument, structure, approach, and methods. He divides his book into four parts: Antebellum SCCs, Secession SCCs, Reconstruction SCCs, and (what he labels) Redemption SCCs. As noted, his argument revolves around the incremental solidification of Southern political identity over roughly a 40-year span via the mechanism of multiple SCCs. By expressly highlighting the institutional and ideological development of southern political identity (p. 20), Herron employs an APD-style of approach, defending it as a useful lens for his project. This lens functions as an optimal guide to answer the research question he posits early on, namely uncovering the causes and consequences of state constitutional revision in the South from 1860-1902 (p.12).

He further outlines his methods to triangulate his analysis. His methods comprise comparative historical analysis (namely of southern and non-southern SCCs), process tracing, and textual analysis of both the state constitutions and their respective convention debates (pp. 20-23). In addition to the notes from [*61] constitutional conventions, Herron also consults newspaper accounts, memoirs, and other records when convention notes were lacking (p. 20). The resulting mixture offers a compelling narrative analysis of robust depth that is simultaneously intriguing and enlightening. In short, Herron vivifies nineteenth-century SCCs, an oft-overlooked area in the study of constitutional development (p. 17).

In the first chapter, Herron examines the constitutional development of Southern states from the nation’s birth in 1776 up to the South’s secession in 1860, juxtaposing the language of the various southern state constitutions against each other and other non-southern state constitutions. Prior to secession, the South possessed no monolithic identity which united the region, though a pattern of unity began to emerge in the early 19th century as slavery arose as a paramount issue when the nation began its westward expansion. Slavery thus profoundly impacted the laws and state constitutional development in the South (pp. 32, 44-46). To insulate themselves, southern states included structural assurances (e.g. rigid amendment processes) combined with textual provisions in their constitutions that explicitly protected slavery (pp. 55, 59). The results of these conventions produced an eye-opening paradox (not original to Herron’s analysis) that he spotlights: democratization (i.e. universal white male suffrage) in the South was made possible only through the preservation of slavery (pp. 46, 68). The inclusion of slavery in southern state constitutions ensured its permanence in southern society (pp. 68-9). With the election of Lincoln in 1860, the eleven southern states that would become the Confederacy embarked on a number of constitutional revisions (44 to be precise) that would not cease until 1902 (p. 11).

IT’S NOT PERSONAL: POLITICS AND POLICY IN LOWER COURT CONFIRMATION HEARINGS

Vol. 31 No. 2 (February 2021) pp. 57-59

IT’S NOT PERSONAL: POLITICS AND POLICY IN LOWER COURT CONFIRMATION HEARINGS, by Logan Dancey, Kjersten R. Nelson, and Eve M. Ringsmuth. Ann Arbor, University of Michigan, 2020. 198pp. Cloth: $70.00 ISBN: 978-0-472-13183-9.

Reviewed by Rorie Spill Solberg, School of Public Policy/Political Science Program, Oregon State University. Email: solbergr@oregonstate.edu.

Justice Ginsburg, during a CNN interview in 2018, remarked that “[I]t is distressing when the people regard the judiciary as just another political branch of government” (CNN 2018). It is likely that Ginsburg would find much of our field’s work “distressing” as so much of it is predicated on the idea that the justices base their decisions on ideology rather than merely following the law. The eminent justice might have also found Dancey, Nelson, and Ringsmuth’s IT’S NOT PERSONAL: POLITICS AND POLICY IN LOWER COURT CONFIRMATION HEARINGS distressing, but for a different reason. This thorough and meticulous exploration of lower court confirmation hearings suggests that the members of the Senate treat most judicial nominations like they do any other congressional business. The classic explanations of congressional behavior offered by Fenno (1978; 1973), Kingdon (1973), and Mayhew (1974) travel seamlessly and explain the persistence of the confirmation hearings despite the rather dull and routine nature of most nominations. In other words, this is truly a book about Senate behavior and politics with judicial nominations working as the data; however, by using this lens we do also learn a great deal about the nature of run-of-the-mill confirmation hearings.

The question at the heart of this investigation is “Why do senators hold confirmation hearings for lower federal court nominees and what is the value of these hearings in the larger advice and consent process?” (p. 2) To answer these two questions, Dancey, Nelson, and Ringsmuth split the volume into three unequal parts and use data gathered from confirmation hearings running from 1993 through 2012. The first section examines the judiciary committee and confirmation hearings overall—who serves on the judiciary committee, and the details of the confirmation process (Chapters 2 and 3). The next section (Chapters 4, 5, and 6) examines noncontroversial hearings from three different perspectives. Noncontroversial hearings include all district court hearings and noncontroversial court of appeals confirmations. This focus may seem counterintuitive, but as the scholars argue in the introductory chapter, it makes sense. While the controversial nominee tends to gain attention and media coverage, these are relatively rare and not particularly useful for explaining why the senate persists in holding confirmation hearings, given the time and resources needed to do so, for nominees that are all but predetermined to be confirmed. Chapter 7 investigates the controversial Court of Appeals hearings and Chapter 8 concludes the volume by providing an overview of the findings, suggestions for the overall role that noncontroversial hearings play, and possible options for reform.

Chapter 3 is really the bird’s eye view of the hearings and the purpose of the book. It sets out to prove that most nominees are noncontroversial and that there really isn’t an audience for scoring points in these less salient hearings. This chapter also [*58] details the coding scheme for the content of the hearings and questions. Finally, this chapter reveals what is the norm for most hearings—how many questions are asked and by how many different senators, the likelihood of opposition, and how the hearings have varied across the time period.

Chapters 4, 5, and 6 are really the heart of the volume and all three, again, examine the noncontroversial hearing. Identifying noncontroversial hearings by the lack of interest group or NGO opposition, the scholars show in several different ways that these hearings are “not personal” or not individualized. Their main evidence is that neither the attendance of senators, number of questions, nor the questions asked focus on the individual. Rather the types of questions work across nominees to make larger points of public policy. While most of the volume relies on statistical analyses of a larger group of hearings, these scholars also employ a quick case study of four long-serving members of the Senate to show that their questioning of these noncontroversial nominees remains consistent regardless of who is sitting before them. Participation in these hearings, then, is best described as serving the goals of reelection and good public policy (à la Mayhew (1974), Fenno ( ), and Kingdon ( )) rather than necessarily scoring points with outside groups. For example, it is easy to predict which senators will attend these hearings. First, you will have senators from the nominee’s home state who take the opportunity to introduce the nominee and take credit for the nomination and targeting their geographic constituencies. Otherwise, the committee members present will be junior members, members with an institutional role to play, and members not running in the current election cycle.

ABORTION AND THE LAW IN AMERICA: ROE V. WADE TO THE PRESENT

Vol. 31 No. 2 (February 2021) pp. 53-56

ABORTION AND THE LAW IN AMERICA: ROE V. WADE TO THE PRESENT, by Mary Ziegler. New York, NY: Cambridge University Press, 2020. 326pp. Cloth. $89.99. ISBN: 9781108498289. Paper. $29.99. ISBN: 9781108735599. eBook. $24.00. ISBN: 9781108582599.

Reviewed by Helena Silverstein, Professor of Government and Law, Lafayette College. Email: silversh@lafayette.edu.

The conflict over abortion in the United States is often characterized, as Laurence Tribe put it, as a clash of absolutes, pitting right against right in a contest that allows little room for compromise (Tribe 1992, p. 3). Mary Ziegler's book, ABORTION AND THE LAW IN AMERICA: ROE V. WADE TO THE PRESENT, complicates this depiction by offering a compelling and illuminating historical account of the law and politics of abortion. Ziegler's rich and readable analysis is exhaustive (but not exhausting) and will be welcome by students and scholars alike.

Ziegler trains her attention on how the abortion fight has played out since the Supreme Court ruled in 1973 that the Constitution protects a woman's right to terminate her pregnancy. Through this telling, Ziegler presents her main argument: since ROE V. WADE was decided, the terms of the abortion debate have changed considerably and in ways that often go unnoticed. In particular, while the clash over constitutional rights claims endures, the conflict has increasingly been waged in policy-based arguments about the costs and benefits of abortion. "Over time, pro-life and pro-choice activists gave radically different descriptions of the basic facts about the procedure. The conflict about abortion goes far deeper than the idea of two irreconcilable rights that became prominent in constitutional litigation" (p. 6).

The expansion of policy-based arguments lays bare competing perspectives about the consequences to women, family, and society of regulating or criminalizing abortion. In disputes over abortion funding, mandated spousal and parental involvement, informed consent provisions, partial-birth abortion bans, fetal pain regulations, access to abortion, and more, the attention of both abortion opponents and abortion-rights advocates shifted to include deep disagreements over the real-word consequences of abortion. This shift has not mitigated conflict. To the contrary, it has exacerbated polarization.

Ziegler presents this argument by way of a thorough and detailed history, organized chronologically. After presenting the overview of her argument in the Introduction, the book proceeds in chapters that cover the years from ROE through 2019. Chapter 1 goes back a bit further, providing a longer historical lens of the lead up to ROE V. WADE before discussing the ruling itself. Chapter 2 treats the period immediately following ROE and examines, among other things, the important effort to ban public funding of abortion. Chapter 3 covers most of the years of the Reagan presidency, which included a changing of the guard on the Supreme Court, alignment of the pro-life movement with the Republican party, and a move among abortion opponents away from fighting for a constitutional antiabortion amendment to efforts to undo ROE. Those antiabortion efforts—[*54] sometimes seeking direct reversal and in other instances taking a more incremental approach—appealed to asserted harms and costs of abortion. Chapter 4 takes the reader from 1987 through PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY, the 1992 decision that did not, contrary to expectations, directly overturn ROE. Chapter 4 attends to policy debates about the consequences of abortion for families and equality, as well as the growing movement to block access to abortion by physically blocking access to clinics. It also underscores how the ruling in CASEY "put the costs and benefits of both abortion and laws regulating it at the center of constitutional discourse…. The Court's willingness to preserve abortion-rights, it seemed, depended on evidence that abortion helped women achieve more equal citizenship" (p. 119).

THE CENTAUR’S DILEMMA: NATIONAL SECURITY LAW FOR THE COMING AI REVOLUTION

Vol. 31 No. 2 (February 2021) pp. 48-52

THE CENTAUR’S DILEMMA: NATIONAL SECURITY LAW FOR THE COMING AI REVOLUTION, by James E. Baker. Washington, Brookings Institution Press, 2021. 335 pp. Paperback $34.99. ISBN: 9780815737995.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: tobias.gibson@westminster-mo.edu

Judge James E. Baker, Director of the Institute for Security Policy and Law and Professor of Law at Syracuse Law School, begins THE CENTAUR’S DILEMMA with two truisms. The first is that artificial intelligence (AI) is widespread and will only become more ubiquitous. The second is that law is rarely, and perhaps never, in line with the technology that it is supposed to govern.

As described by Baker, the approaching dilemma is that of decision making, especially in the realm of national security, that will combine human and machine—like the half human, half horse centaur of mythology. Yet, while this is imminent, and in some ways a current issue—think of your reliance on the Waze app—Baker’s stated goal of this book is to allow generalists, including policymakers, to debate and design a legal framework. The time is now because allowing time for debate, including a wide variety of stakeholders, will allow lawmakers “to make informed, purposeful, and accountable decisions about the security use of governance of AI” (pp. 5-6).

The first four chapters of the book establish the problems and provocations of artificial intelligence in a national security setting. To be sure, uses and issues related to AI will certainly arise in areas of policy spaces related to traditional national security spheres, such as military and intelligence. Fighter pilots, autonomous vehicles—whether air based “drones,” or increasingly land and water-based ones—and international surveillance tools and data collection all will be enhanced by cooperative work between human and AI. Baker’s work is focused on establishing a protocol of law and policy that will not allow the cooption of decision making by the coming, and many would argue present, AI revolution.

However, he also adds that the use of AI in everyday items, the so-called Internet of things, also needs to be governed to prevent excessive action on the part of the government and corporations that build smart cars, smart toasters, smart coffee makers, smart refrigerators, and smart phones. As Baker notes, a series of recent Supreme Court cases, discussed below, have led to bright lines in the ways that collected data is used by law enforcement. However, there is much to discern and develop, as AI technology advances beyond Facebook and Amazon algorithms and becomes far more ubiquitous.

That said, however, some of the most directly applicable and, quite frankly, most developed portions of the proposed framework are found in case law, much of which is seminal. Chapter 6, “Constitutional Law,” provides the most directly applicable chapter for scholars of law and courts. [*49]