I have posted a draft of my latest article, Technology and Constitutional Rot, on SSRN. Here is the abstract:
Technological change
affects the Constitution not only by creating new problems of constitutional
interpretation, but also by changing the distribution of economic and political
power. New technologies alter what governments and private actors can know, control,
predict, and accomplish. When constitutional institutions fail to adapt, large shifts
in power and control can lead to constitutional rot: the process by which a democratic
republic becomes less democratic and less republican over time. The United
States has suffered from increasing constitutional rot over the past four
decades; rapid technological change has made the rot worse.
Our Second Gilded Age has
many similarities to the technological and economic upheavals of the First
Gilded Age, which was also a period of constitutional decay. We now live in the
Algorithmic Society, where public and private decision making increasingly
depend on algorithms, artificial intelligence, platforms, large-scale data
collection and digital surveillance. The Algorithmic Society produces an
Algorithmic State, including a National Surveillance State organized around
prediction and prevention. These changes disproportionately strengthen the
executive branch, weaken Congress, limit practical judicial oversight, and
increase government’s dependence on powerful private firms and privately-owned technological
infrastructure.
Large global technology
companies increasingly exercise governing power over communications, commerce, national
security, access to information, and public debate. As a result, government and
technology firms engage in repeated attempts at mutual co-optation, blurring
traditional distinctions between public and private power. Digital platforms reshape
the public sphere through an attention economy that weakens knowledge, intensifies
political polarization, and erodes trust. These changes exacerbate four central
features of constitutional rot: growing wealth inequality, political
polarization, loss of trust, and policy disasters.
Despite these dire circumstances, the United States has recovered from periods of constitutional rot before. The First Gilded Age gave way to the reforms of the Progressive Era and the New Deal. Today constitutional renewal involves a different set of reforms: new digital privacy laws and new antitrust, civil-rights, and due-process protections. Renewal means reconstructing and improving the knowledge institutions that underwrite our democracy. It requires structural changes that better allow Congress to check and oversee the executive branch. And it requires reforms that secure and strengthen our system of democratic representation.