The Symbiosis of Constitutionalism and Technology
McGinnis, John O., Harvard Journal of Law & Public Policy
Technology does not change the essential problems that constitutionalism (1) seeks to address because these problems are rooted in the enduring nature of man. Technological change, however, can transform man's environment. A different environment, in turn, may require substantially modified forms of constitutionalism even if the underlying objectives remain constant. As the great political philosopher Edmund Burke recognized, the key to sound structures of governance in every age and place is to understand the intersection of man's enduring nature with his particular circumstances. (2) Because technology increasingly shapes the circumstances of modern man, technology is becoming progressively more important to constitutionalism.
I. THE ENDURING GOALS OF CONSTITUTIONALISM
Before examining how technology changes the forms of constitutionalism, it is essential to understand what in human nature creates the problems constitutionalism must try to solve. It is beyond the scope of this short essay to offer a complete description of the enduring goals of constitutionalism in light of the realities of human nature, but here is a thumbnail sketch. Humans, like many other animals that live in groups, have two modes of gaining resources, both backed by a set of instincts. (3) One mode is exchange, by which humans provide goods and services in return for other goods and services. The other is hierarchy, by which humans gain goods and services based on their position and status in the social order.
If exchange is the prevalent mode of acquiring resources in society, wealth increases because individuals gain incentives to create what others want. (4) If hierarchy is the prevalent mode of acquisition, wealth dissipates because individuals are afraid to create what others can take by virtue of their position in the social hierarchy. The latter mode also breeds conflict, because individuals gain incentives to fight for a better position in the pecking order. (5) In a world shaped by political hierarchy, it is natural for each citizen to regard his fellow citizens either as sources of wealth he can seize or as threats to commandeer his property. (6) Thus, the prospect of acquisition through hierarchy seems to sow suspicion and division among all citizens.
Accordingly, for moral as well as economic reasons, sound constitutive structures of government aim at promoting exchange and constraining hierarchy. (7) Achieving these goals is more complicated than it might seem, because a government that is powerful enough to protect both the right to exchange and the fruits of exchange is also powerful enough to take away property. In other words, although government can restrain bands of predators from oppressing liberty and taking away property, government itself as a band of humans is a potential predator that needs to be restrained. (8) As St. Augustine wrote, "Justice being taken away, then, what are kingdoms but great robberies?" (9)
Constitutionalism depends on technology because the structure of restraints on government most likely to produce justice varies with the technology of the time. This point is illustrated by how the most important original justice-producing structure of the Constitution -- federalism -- was dependent on the technology of its day.
II. THE TECHNOLOGICAL UNDERPINNINGS OF FEDERALISM'S CREATION AND DECLINE
Federalism -- the concept that encapsulates the doctrine of enumerated powers -- was the Framers' most important contribution to solving the greatest dilemma of political theory. (10) Democracy does not dissolve the dilemma that a government powerful enough to protect liberty and property may be a government powerful enough to threaten liberty and property. (11) An elected ruling coalition may tax and regulate its members to their detriment. Taxation and regulation designed to redistribute opportunities and property from certain groups to others reduces incentives for productive activity and restricts the pursuit of happiness. …