Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution

Abstract

Freedom of thought is often described as the central liberty in our constitutional system. Justice Oliver Wendell Holmes said that there is no principle that “more imperatively calls for attachment” than “the principle of free thought.” The Supreme Court has likewise often placed it at the center of our First Amendment jurisprudence, saying that our “whole constitutional heritage” rebels at giving government the power to “control men’s minds,” and suggesting that the more well-known right to freedom of speech is important largely because of the support it provides for our freedom of thought. It has even said that “freedom of mind,” is “the broader concept” of which freedom of speech is but one “component.”

But while the Court has often celebrated freedom of thought, it has never clearly defined it or delineated its contours. Is “freedom of mind” a liberty that operates and protects only when we express our thoughts in speech or religious action? Or does it have independent force? This Article suggests an answer by looking at a form of government regulation that arguably limits our right to think, or enhance our powers of thought, without limiting our freedom of speech or worship. More specifically, it asks whether the Constitution’s freedom of thought places limits on the extent to which officials may restrict our use of cognitive-enhancement technology, such as the use of neurofeedback devices or psychiatric medications to overcome shyness or improve concentration and alertness. Ultimately, I argue, the power to reshape our thinking processes biologically should be recognized as merely one form of a more general power that our “freedom of mind” is intended to place firmly in our own hands, not in the hands of government officials.