What is digital constitutionalism?

This post is a contribution to the symposium What is Digital Constitutionalism? and not an official editorial position. We nevertheless welcome the author’s contribution and encourage further posts probing the meaning of digital constitutionalism and its limits as an analytical approach.

Constitutionalism is a historical concept whose main values and principles have constantly evolved and are still evolving today. Digital constitutionalism embodies the idea of projecting the values of contemporary constitutionalism in the context of the digital society. In this blog post, I will illustrate to what extent digital constitutionalism is playing a transformative role in our society, explaining that it does not subvert the DNA of contemporary constitutionalism but rather aims to perpetuate its core values in a form that better addresses the peculiarities of the digital society. Digital constitutionalism is not engendering a constitutional revolution but represents a necessary evolution of contemporary constitutionalism in the context of the digital age. Let me start by clarifying the context of the present analysis and our research question.

1. A new constitutional moment

A series of ongoing transformations in contemporary society are challenging existing constitutional law apparatuses. The changes prompted by the digital revolution to ourselves, our relationships with other individuals and, ultimately, in the society at large ferment under a vault of constitutional norms that have been shaped for ‘analogue’ communities. However, the constitutional ecosystem does not lie inert. Existing constitutional settings are being modified or integrated to better address the transformations of the digital age. We are witnessing a new constitutional moment: a complex process of constitutionalisation is currently underway.

A multiplicity of normative counteractions is emerging to address the constitutional challenges of the digital revolution. They attempt to reaffirm our core fundamental rights in the digital context and rebalance new asymmetries of power. The increased power of states that, through the use of digital technology, have gained even more control over the lives of their citizens. But also, the power of the new ‘silicon giants’, potent multinational companies that, by managing digital products and services, de facto influence how we enjoy our fundamental rights. 

However, interestingly, this complex process of constitutionalisation of the digital society is not concerted centrally: there is no single constitutional framer. As in a vast construction site, several contracting companies are working simultaneously, so, in a globalised environment, constitutionalisation simultaneously occurs at different societal levels. Not only in the institutional perimeter of nation-states but also beyond: on the international plane, in the private fiefs of multinational technology companies, within the civil society. The sense of this Gordian knot of multilevel normative responses can be deciphered only if these emerging constitutional fragments are interpreted as complementary tesserae of a single mosaic. Each one surfacing with a precise mission within the constitutional ecosystem, each one compensating the shortcomings of the others in order to realise a common aim: translating the core principles of contemporary constitutionalism in the context of the digital society. In other words: achieving a ‘digital constitutionalism’.

The purpose of this blog post is to introduce the notion of digital constitutionalism and, in particular, to define its relationship with contemporary constitutionalism. Indeed, is digital constitutionalism a new form of constitutionalism? By adapting its core values to face the mutated context of the digital society, is the constitutional ecosystem radically changing its core tenets? Does digital constitutionalism represent a constitutional revolution, or is it rather a physiological evolution of constitutionalism in the digital age?

2. The values of constitutionalism

Constitutionalism evolves. This concept does not denote a process, as we have seen, but this does not contradict that its underlying values, ideals, principles have changed over time. The notion of constitutionalism emerged at the beginning of the nineteenth century as a response to absolute monarchy and popular despotism. It advocated the adoption of a constitution, a written legal text establishing the fundamental law of a country, and, at the same time, its primacy over the discretion of rulers. The power of the government should be legitimated by the constitution, an expression of popular sovereignty, and should be bound by the constitution, which represents its ultimate limit. No actor in society should detain at the same time the legislative, executive and judiciary power. No ruler should be ab-solutus, unrestricted from the control of other institutional organs whose power derives from the constitution. At the outset, constitutionalism was an ideology, a movement of thought that claimed the values of the rule of law and the separation of power. 

This normative vision of society championed by the original constitutionalism was subsequently enriched with other ideals. Democracy definitively supplanted other forms of government and established itself as a foundational value. Besides a negative, limitative approach, claiming the restriction of the power of rulers by law and the institution of a system of checks and balances, constitutionalism also developed a positive aspect, pivoting around individual empowerment. In this way, the ultimate mission of constitutionalism, the limitation of power, was re-oriented towards the protection of fundamental rights and, ultimately, the safeguarding of human dignity.

When one thinks of constitutionalism, one generally implies the values underlying contemporary constitutionalism, the ideology that progressively developed from the big revolutions of the end of the eighteenth century. Constitutionalism is today synonymous with the values of democracy, the rule of law and the separation of powers. Constitutionalism is associated with the idea of the protection of all fundamental rights that have been gradually recognised over the past few centuries, be they civil, political, socio-economic or cultural. However, what today no longer holds true is the necessary connection of the idea of constitutionalism with the nation-state. 

The values of constitutionalism historically ripened in the context of the state. However, over the past few decades, in a society that has become increasingly more global, the centrality of the state has faded due to the emergence of other dominant actors in the transnational context. The scholarship has therefore started to transplant the constitutional conceptual machinery beyond the state, including the concept of constitutionalism. The myth of the compulsory link between constitutionalism and the state is debunked. Consequently, the constitutional ecosystem becomes plural, composite and fragmented. If the values of constitutionalism remain the same in their essence, their articulation in specific contexts, within and beyond the state, necessarily becomes ‘polymorphic’.

3. Digital constitutionalism

Contemporary constitutionalism was not extracted from the rock of history as a monolithic marble block. Constitutionalism developed more like an onion. Its fundamental inner values progressively shaped further external layers: principles budding to face the emerging complexities of the society. 

Today, analogue constitutional principles cannot anymore solve all the challenges of the digital society. The external shape of constitutionalism necessarily changes again. New constitutional layers are progressively added to those already in existence. Novel principles emerge to articulate the fundamental values of constitutionalism in light of the problematic issues of contemporary society. The scale of transformation prompted by the advent of the digital revolution is such that one can neatly distinguish the multiplicity of new normative layers embracing or even incorporating older ones. A fresh sprout within the constitutionalist theory: what one could call ‘digital constitutionalism’. 

Digital constitutionalism is a useful shorthand to denote the ideology that advocates for the translation of the core values of constitutionalism in the context of the digital society. At first sight, however, such a descriptor could appear as misleading. The adjective ‘digital’ does not directly qualify the substantive ‘constitutionalism’. It is not akin to expressions such as ‘democratic constitutionalism’ or ‘liberal constitutionalism’ in which, respectively, democracy and liberalism characterise a newly acquired orientation of the theory of constitutionalism. ‘Digital’ is rather an adverbial conveying the idea that one is referring to that strand of the constitutional theory that seeks to articulate principles for the digital society. 

Digital constitutionalism is the strand of contemporary constitutionalism that is adapting core constitutional values to the needs of the digital society. Digital constitutionalism advocates the perpetuation of foundational principles, such as the rule of law, the separation of powers, democracy and the protection of human rights, in the mutated scenario of the digital society. It triggers a complex process of constitutionalisation of the virtual environment, which occurs through a multiplicity of constitutional counteractions, both within and beyond the state. At times, these initiatives share tools and language, as in the case of Internet bills of rights, the manifold declarations of digital rights that have emerged copiously over the past few decades. Their affinity is such that they can be even be identified as a single ideological movement, the ‘digital constitutional movement’. Century-old values are translated into normative principles that can speak to the new social reality. Digital constitutionalism reiterates that digital technology does not create any secluded world where individuals are not entitled to their quintessential guarantees.

4. A constitutional (r)evolution?

Digital constitutionalism represents the conceptual lymph of the current constitutional moment. It normatively advocates a reconfiguration of the constitutional framework. Analogue norms are no longer able to address the full range of complexities of the virtual environment. A series of normative counteractions are emerging to implement the principles of a constitutionalism rethought for the digital age. The current constitutional moment, too, has a ‘transformative impact’. Core constitutional values are generalised and subsequently re-specified in light of the characteristics of contemporary society. Constitutionalism is translated in a language that speaks to the actors of the virtual environment. In this way, old principles become more easily applicable in new societal contexts. Further corollaries and even novel norms emerge to express foundational constitutional values in the digital society. 

This process of constitutionalisation is still ongoing; yet, it is legitimate to ask: are we facing an evolution or a r-evolution of contemporary constitutionalism? Is reshaping constitutionalism for the digital age merely a way to enhance its fitness vis-à-vis the mutated conditions of the social reality? Or does it imply a more radical change of paradigm?

The extended scope of digital constitutionalism in comparison with its analogue version could be mentioned as apparent evidence of the revolutionary nature of the current constitutional moment. Constitutionalism is no longer anchored to the nation-state. In the digital age, it promotes ways to limit the power of all dominant actors, be they public or private. Overlooking the capability of non-state actors to affect individual rights would be anachronistic and would ultimately fail to safeguard human dignity, which can be equally violated by public and private hands. 

Some scholars argue that the present circumstances would necessarily require ‘a new constitutionalism’. One is tempted to evoke the advent of a new form of constitutionalism because constitutional moments generally represent the apex of a transformative process. Adaptations and transformations have always been integral components of the vital cycle of constitutionalism. However, today, constitutional counteractions emerge in response to a digital revolution violently shaking the existing constitutional architecture. Existing constitutional norms, which were shaped for an analogue society, are under unprecedented stress. One, therefore, envisages the need for immediate, drastic transformations. Digital constitutionalism would represent an appeal to urgently take remedial action: a last-minute, normative SOS.

If the digital revolution is regarded as a looming and inexorable cataclysm, the extent of the constitutional change is dramatised too. The constitutional ecosystem has still to fully realise the severity of the storm that it has started to navigate. It has waited until the last minute to understand the necessity to react against the challenges of the digital revolution, and now one has the impression that the normative transformations needed will represent a Copernican revolution. 

Certainly, the emergence of constitutional counteractions is not evidence that supports the vision of a constitutional ecosystem that is riding the digital revolution on the crest of the wave – this is true. However, from an objective standpoint, the current constitutional moment does not represent a radical upheaval. We are not facing a change of paradigm that is indelibly transforming the shape of our constitutional identity. We are not witnessing a transition from democracy to technocracy, for example. Digital constitutionalism does not advocate a tabula rasa of our core constitutional values. On the contrary, it is deeply rooted in these foundational principles. 

Digital constitutionalism champions their translation in the context of the digital society. Innovation, of course, occurs – it suffices to think that digital constitutionalism seeks to limit the power of private actors too. The societal context unavoidably imposes similar changes. However, this does not subvert the original constitutional paradigm founded on the values of democracy, the rule of law, the separation of powers, and the protection of human rights. Digital constitutionalism perpetuates these constitutional principles in a mutated social reality: in the digital society, the DNA of contemporary constitutionalism is ultimately preserved.