Constitution Day Lecture: Technology and Constitutional Rot

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.

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.