Technology, Power, and ‘Constitutional Rot’

The federal government increasingly relies on private companies to govern: Palantir for foreign intelligence, Amazon for cloud computing, Starlink for satellite communications, and OpenAI and Anthropic for artificial intelligence. Meanwhile, digital platforms shape who gets heard and how people encounter politics and news.

None of that changes a word of the U.S. Constitution. But it is profoundly changing how the Constitution operates.

That was the sweeping—and sobering—argument Yale Law Professor Jack Balkin brought to Stanford’s 2026 Constitution Day lecture on September 17. Technological change, he argued, is reordering power among branches of government, blurring the line between public and private authority, weakening institutions essential to democratic debate, and accelerating what he calls “constitutional rot.”

“The Constitution on the page may stay exactly the same while the Constitution in practice changes dramatically because of changes in technology,” Balkin said.

Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School and founder and director of Yale’s Information Society Project, delivered “Technology and Constitutional Rot,” presented by the Stanford Constitutional Law Center.

Michael McConnell, the Richard and Frances Mallery Professor of Law and director of the center, introduced Balkin. Constitution Day, McConnell said, is not simply about venerating a document completed in 1787, but about continuing the argument over what the Constitution means and how it should govern.

Balkin defined “constitutional rot” as the process by which a democratic republic becomes less democratic and less republican: government grows less responsive to popular will, officials less oriented toward the public good, and norms of cooperation and fair play begin to erode.

Its “four horsemen,” he said, are widening wealth inequality, political polarization, loss of trust, and policy disasters that leave citizens viewing the government as incompetent or indifferent.

The United States has experienced such periods before, including the first Gilded Age and the decades preceding the Civil War. Balkin described the present as a “second Gilded Age,” marked by similar forces, including rapid technological disruption, extraordinary concentrations of wealth, bitter political division, and distrust of institutions.

Technology did not create those conditions, he stressed. But it is making them worse.

Balkin calls the social order built around data, platforms, algorithms, robotics, and artificial intelligence the “algorithmic society.” Its governmental counterpart, the “algorithmic state,” increasingly uses prediction, automated decision-making, and AI in policing, immigration, taxation, public benefits, national security, warfare, and other areas.

That shift disproportionately empowers the executive branch, he said. Digital systems enhance what Alexander Hamilton prized in executive government—decision, activity, secrecy, and dispatch—while adding vast new capacities to gather information, predict behavior, and act.

Congress retains its formal powers but lacks comparable technological infrastructure, expertise, and speed. Courts, he said, can act only when disputes reach them, while the opacity and complexity of technological systems make oversight difficult.

Major technology companies, Balkin stressed, are no longer simply contractors selling government products. They increasingly provide “the infrastructure through which government itself operates.”

At the same time, platforms act as “special purpose sovereigns,” he said, exercising governing authority of their own by setting rules, excluding users, ranking speakers, structuring markets, and resolving disputes. The result is what he described as “mutual co-optation”: governments seek technological capacity from private firms, while the firms seek contracts, favorable regulation, protection, and influence.

That poses a foundational constitutional problem because many protections depend on the distinction between public and private power. The First Amendment constrains government censorship while protecting private editorial judgment; the Fourth Amendment limits government searches while private companies routinely collect vast amounts of personal data.

“In a world in which we can no longer tell what’s private and what’s public,” Balkin said, “we have enormous tension on the constitutional system.”

Democracy depends on institutions that produce knowledge, shape public opinion, and enable citizens to evaluate those who govern them, he said. Digital technology has enabled extraordinary freedom of expression while simultaneously weakening institutions—including journalism, universities, and science—that help distinguish knowledge from falsehood. The result is what Balkin called a “politics of attention,” with platforms rewarding engagement, not truth. These forces, he argued, compound constitutional rot. Concentrated wealth magnifies political power, attention-driven systems intensify polarization, opaque algorithms fuel distrust, and weakened knowledge institutions make policy failures harder to prevent and correct.

After joking that he had delivered “a total downer of a talk,” Balkin turned to renewal.

His grounds for optimism were historical. Earlier periods of constitutional rot were followed by sweeping reform: Reconstruction after the Civil War and, after the first Gilded Age, the Progressive Era and New Deal. But “history is not like clockwork,” he cautioned. Technology does not dictate political outcomes; people decide how technologies are designed, regulated, owned, and used.

Because the problems are structural, Balkin argued, the solutions must be as well. He pointed to stronger digital privacy protections, new approaches to civil rights and due process in algorithmic systems, better oversight of government technology procurement, stronger congressional technological capacity, and broad reforms to democratic institutions.

“Technology does not determine our fate,” Balkin concluded. “It changes possibilities for exercising power.” The constitutional challenge, he said, is to discipline those new technologies of power so they serve democratic and republican ends.

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