Editorial note. This is a working draft published for comment. Proposing a constitutional amendment is not a step we take lightly, and the case against doing so is set out below rather than left to opponents.
The Proposed Amendment
Section 1. No person shall be deprived of life, liberty, or property, nor denied any right, benefit, or protection secured by law, by the United States or by any State, on the basis of a determination made solely by an automated system.
Section 2. Any person subject to a determination made or substantially informed by an automated system, in any proceeding of the United States or of any State, shall have the right to be informed of that fact, to an explanation of the basis of the determination sufficient to enable it to be contested, and to review by a natural person having authority to set the determination aside.
Section 3. The Congress shall have power to enforce this article by appropriate legislation.
What the Amendment Does
Section 1 — The prohibition
Section 1 bars government, federal and state alike, from resting a deprivation on an automated determination alone. It reaches the classic due process interests — life, liberty, property — and extends to statutory entitlements, because in practice the automated determinations that affect most people concern benefits, licenses, and eligibility rather than incarceration.
The section does not prohibit the use of automated systems. It prohibits their use as the sole basis of a deprivation. An agency may use a system to prioritize a caseload, flag an anomaly, or draft a recommendation, provided a person stands behind the determination.
Section 2 — The procedural rights
Section 2 supplies what Section 1 alone would not. A prohibition on sole reliance is easily satisfied by a signature, so the procedural guarantees are deliberately drafted against a wider trigger: a determination “made or substantially informed by” an automated system. Nominal human involvement escapes Section 1; it does not escape Section 2.
The three rights are cumulative and each is necessary:
a. Notice — without knowing a system was used, a person cannot invoke the other two rights, and in practice will not know there is anything to contest. b. Explanation — qualified by what it is for. The standard is not technical completeness but sufficiency “to enable it to be contested.” A model architecture diagram does not satisfy it; a statement of the factors that drove this outcome does. c. Human review — by a person with authority to set the determination aside. Review by someone who cannot change the result is not review.
Section 3 — Enforcement
Section 3 follows the Reconstruction Amendments in giving Congress affirmative enforcement power, allowing the right to be given statutory shape — remedies, procedures, definitions — without each application waiting on litigation.
Why an Amendment Rather Than a Statute
We considered the statutory route and rejected it for three reasons.
Coverage. A federal statute reaches state agencies only through the spending power or the Commerce Clause, both of which are contested ground and neither of which covers the state criminal justice systems where automated risk assessment is most consequential. A constitutional provision binds the states directly.
Durability. Automated determination is being adopted by agencies under fiscal pressure, and the pressure runs toward removing the human in the loop because that is where the savings are. A statutory protection sits in exactly the place that pressure is applied. This is the ordinary argument for constitutionalizing a procedural guarantee, and it is the argument the Fifth and Fourteenth Amendments themselves rest on.
Interpretive anchor. Courts are already deciding these cases under existing due process doctrine, with divergent results, because the doctrine was written for a decision-maker who can be examined. An explicit provision gives them a text to construe rather than an analogy to stretch.
Objections We Take Seriously
It writes a technology into the Constitution
The strongest objection. Constitutions should state durable principles, and “automated system” is a category defined by present technology that may look arbitrary in fifty years.
Our answer is that the operative concept is not the technology but the absence of a reasoning agent who can be held to account — which is why the text speaks of a determination made by an automated system rather than naming any technique. The Fourth Amendment’s “papers and effects” has survived the disappearance of papers. We accept that this is a bet on the drafting, not a refutation.
“Solely” is a loophole
It is, and the experience under Article 22 of the GDPR shows exactly how it is exploited: a human signs, and the determination ceases to be “solely” automated. We have not solved this in Section 1. We have routed around it by attaching the procedural rights in Section 2 to the much wider “substantially informed” trigger, so that the rubber stamp buys nothing procedurally. A reader who thinks Section 1 is therefore doing little work is not wrong; its function is to state the principle that Section 2 operationalizes.
It will slow government to a halt
The amendment requires a human determination for deprivations and review on request. It does not require individualized human adjudication of every automated output, and nothing in it prevents an agency from using automation to handle volume. The cost falls on the subset of cases that are contested, which is the subset where due process has always been expensive.
Amendment is practically impossible
Two-thirds of both Houses and three-quarters of the states is a high bar, and no amendment has been ratified since 1992. We think this is a reason to begin now rather than a reason not to begin, and we would rather argue for the right provision and lose than get a weaker one enacted quietly. In the meantime the text is available to any state that wishes to place the same guarantee in its own constitution, where the bar is considerably lower and where a good deal of the relevant government activity actually sits.
Ratification
Proposed under Article V, to be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of submission.