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A Constitutional Right to Use Thought-Enhancing Technology

MARC JONATHAN BLITZ

Introduction

Should there be a constitutional right to cognitive enhancement? In a sense, there already is, at least in the United States. Thanks to the freedom of speech guarantee found in the First Amendment of the Constitution, Americans have a right to sharpen their thinking or expand their mental capacity—as long as they do so with words or other forms of expression. Government may not prohibit me, for example, from extending my natural memory with the aid of pen and paper or with computers and word processing software. If I take notes about an occurrence to help fix it in my mind, the government may not arrest me for doing so or confiscate my notes so that their contents are more easily forgotten. Nor may officials stop me from improving my mental operations with the aid of other people’s writing or artistic expression. They may not restrict my access to self-help books or meditation manuals, to instructional videos that enlighten me, music that energizes me and perhaps markedly changes my mood, or video games that allow me to hone certain skills as I play them.

Of course, these examples leave open the question of whether the US Constitution protects or should protect our use not only of measures we take to enhance our thinking with language or art, but also the type of conduct that writers (like those in this volume) are usually talking about when they talk about “cognitive enhancement”—that is, enhancement carried out with drugs such as selective serotonin reuptake inhibitors (SSRIs) and methylphe- nidate or medical procedures such as transcranial magnetic stimulation (TMS) wherein the electrical activity within the brain is altered by electromagnetic coils placed just outside the head. Is there a constitutional right in the United States to reshape one’s mind not merely with words or images but also with chemicals or electrical currents?

On first blush, it may seem that the answer is “no.” If the Constitution protects cognitive enhancement when we use (or act as an audience for) language or art, perhaps it does so only by accident. If we enhance our mental functioning with books, meditation videos, or mind-training iPhone apps, such enhancement is protected. But this is not because the Constitution protects cognitive enhancement itself, one might argue, but rather because it protects books, poems, manuals, and apps.

The First Amendment’s language, after all, protects “freedom of speech” not freedom of all conduct that allows individuals to exercise mental autonomy or reshape their own psyches.1 This focus on speech and other expression is supported not just by text, but also by tradition. The linguistic tools we use to transform our minds with books, conversations, or prayers, for that matter, have long been treated by the United States, and, to a lesser extent, by certain other liberal democratic systems, as largely off limits to state control. It is up to me, not the state, what beliefs I adopt, what opinions I voice, or what religion I practice.

Matters are different, however, when our tools of cognitive enhancement come from the more hazardous and extensively regulated realm of medical treatment. Medications, of course, can have physically harmful side effects. They can have unexpected consequences that, had they been known to someone taking the medication, might have led her to avoid it. It is thus not surprising that the US Food and Drug Administration (FDA) has long restricted the marketing of drugs1: 703- 723-724 and does not approve them for sale or use prior to a showing of safety and efficacy.2: 245 255 Nor is it surprising that courts have classified the communication integral to prescribing a drug (or administering other medical treatment) as medical conduct outside the First Amendment’s scope.”

This is one plausible stance on the constitutional status of cognitive enhancement. This chapter briefly sketches another. In short, it argues that, if, as the Supreme Court has said, constitutional “liberty presumes” and protects “an autonomy of self,”5: 562 then there is a strong case to be made that individuals are engaging in a key exercise of such autonomy when they use modern technology to reshape their thinking processes. First, it takes a closer look at First Amendment law and explains why, although it speaks only of “freedom of speech” and “freedom of religion,” it also provides strong protection for freedom of thought. It also explains why we can illuminate this freedom with the help of recent writings on the concept of the extended mind. Second, it explains why and how this freedom of thought protection might persist even where there is a substantial need for government health and safety protection measures. In short, the Constitution’s protection of individual autonomy does not simply vanish in environments where government must closely monitor and regulate activity in the interest of health and safety. Autonomy protection instead takes a form that is compatible with such health and safety protection.

To be sure, there is an important limit built into this argument: the constitutional protection it sketches for cognitive enhancement comes from a particular Constitution (that of the United States) and from a feature of that Constitution that distinguishes it from that of most other liberal democracies (the extraordinary strength of the protection it accords to speech and other expression). As explained in the conclusion of the chapter, however, although the analysis herein draws heavily and focuses on America’s First Amendment jurisprudence, it may still have value for legal systems that protect freedom of thought and expression in other ways.

 
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