Should AI Write Your Constitution?

Abstract

Artificial Intelligence (AI) now has the capacity to write a constitution for any country in the world. But should it? The immediate reaction is likely emphatically no—and understandably so, given that there is no greater exercise of popular sovereignty than the act of constituting oneself under higher law legitimated by the consent of the governed. But constitution-making is not a single act at a single moment. It is a series of discrete steps demanding varying degrees of popular participation to produce a text that enjoys legitimacy both in perception and reality. Some of these steps could prudently integrate human-AI collaboration or autonomous AI assistance—or so we argue in this first Article to explain and evaluate how constitutional designers not only could, but also should, harness the extraordinary potential of AI. We combine our expertise as innovators in the use and design of AI with our direct involvement as advisors in constitution-making processes around the world to map the terrain of opportunities and hazards in the next iteration of the continuing fusion of technology with governance. We ask and answer the most important question now confronting constitutional designers: how to use AI in making and reforming constitutions?

We make five major contributions to jumpstart the study of AI and constitutionalism. First, we unveil the results of the first Global Survey of Constitutional Experts on AI. How do constitutional experts view the risks and rewards of AI, would they use AI to write their own constitution, and what red lines would they impose around AI? Second, we introduce a novel spectrum of human control to classify and distinguish three types of tasks in constitution-making: high sensitivity tasks that should remain fully within the domain of human judgment and control, lower sensitivity tasks that are candidates for significant AI assistance or automation, and moderate sensitivity tasks that are ripe for human-AI collaboration. Third, we take readers through the key steps in the constitution-making process, from start to finish, to thoroughly explain how AI can assist with discrete tasks in constitution-making. Our objective here is to show scholars and practitioners how and when AI may be integrated into foundational democratic processes. Fourth, we construct a Democracy Shield—a set of specific practices, principles, and protocols—to protect constitutionalism and constitutional values from the real, perceived, and unanticipated risks that AI raises when merged into acts of national self-definition and popular reconstitution. Fifth, we make specific recommendations on how constitutional designers should use AI to make and reform constitutions, recognizing that openness to using AI in governance is likely to grow as human use and familiarity with AI increases over time, as we anticipate it will. This cutting-edge Article is therefore simultaneously descriptive, prescriptive, and normative.

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