Document Type
Essay
Publication Date
6-2025
Publication Citation
100 Indiana Law Journal 1959
Abstract
Neurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature by making the relatively easy case that the Ninth Amendment protects freedom of thought and mental privacy from uses of neurotechnology. It concludes by suggesting that the state action doctrine once again deserves reconsideration because commercial actors pose at least as much risk of exploiting the forum internum as government actors. Along the way, this Essay helps celebrate this centennial volume of the Indiana Law Journal by engaging with works in prior volumes, most notably a 1936 article that is widely viewed as the first scholarly analysis of the Ninth Amendment.
Recommended Citation
Tomain, Joseph A.
(2025)
"Ninth Amendment Neurorights,"
Indiana Law Journal: Vol. 100:
Iss.
4, Article 15.
Available at:
https://www.repository.law.indiana.edu/ilj/vol100/iss4/15