The United States is not unfamiliar with the idea that a bunch of dead white men might inform the meaning and interpretation of the Constitution. Originalism is the very idea that constitutional meaning is derived from ‘the intentions of those who draft and debated the Constitution’. In a speculative turn that competes with the literary time-travelling skills of H G Wells, US courts invoking original intent originalism seek to “ask” the founding fathers what was intended in 1787 when they drafted the constitution. Those are characters that we would be familiar with: James Madison, Alexander Hamilton, Thomas Jefferson, and John Adams to name a few of the “Founding Fathers”. But there is also a form of originalism – known as populist originalism – that speculates on what the public at the time of the Constitution’s ratification would have understood the Constitution to mean. But without source materials like The Federalist Papers, how would we know? I wonder, could we ask them?
This act of travelling back in time to the constituent assembly is not just something US judges can do without a time-machine. Derrick Bell in his novel And We Are Not Saved: The Elusive Quest for Racial Justice sends Geneva Crenshaw (a Civil Rights Attorney) back in time to the Constitutional Convention of 1787 in an attempt to persuade the Founding Fathers of the United States of America to ban slavery. In this episode of the novel, Crenshaw fails to persuade the men to change their minds about constitutionally protecting the right to property that men had in slaves. It is a clever use of speculative fiction to critique the assumptions about humanity and the idealised citizen underpinning US constitutional law, as well as critiquing the hold that the dead have over the constitution. Indeed, through theories of originalism, the dead reach forward from the past into the present to constitute the future; whilst they might not ‘subsist as a constitutional actor with overarching authority’ on the constituent power, these ghosts clearly have some constituent potential. In a technological era where the dead are being uploaded and saved online, this raises the question whether these digital ghosts have constituent power?
Digital Ghosts
‘Digital Ghosts’ refers to the online presence of a person that continues to exist after their physical death. This online presence could include social media profiles, photos, emails, GoogleDocs, etc., but also now AI-generated representations of the person. AI companies can use the data that someone has accumulated over their lifetime to simulate that person once they are dead. Using AI-systems or Large Language Models, such as ChatGPT, people can communicate with the dead. Companies, such as Super Brain, use this technology to offer a ‘griefbot’ service so that people can speak to their lost loved ones. There are already concerns about these digital ghosts or deadbots being used by employers to simulate the work of a dead employee, with scholars exploring the rights and ethics of these spectres. Could the Digital Ghosts of the future be asked to interpret a constitution of the present?
This might sound like the stuff of science fiction or an episode of Charlie Brooker’s Black Mirror (for example, “Be Right Back” (Season 2, Episode 1)). And Mattias Kumm might well question ‘How can the dead hand of the past legitimately exercise control over the living?’. Yet, the law’s commitment to a past, whether that is through the mechanism of precedent in common law jurisdictions, theories of constitutional unamendability, or the constitutional interpretation theories of originalism suggests a potential space for the legal ghost. Whilst John J Liolos asks ‘Should the Dead Bind the Living?’ in constitutional conventions, Thomas Jefferson (ironically) answered “no”. He wanted to prevent the dead from binding the living and had argued that ‘the dead have no rights’, thinking that each generation had a ‘right to choose for itself the form of government’ (Letter from Thomas Jefferson to Samuel Kercheval (12 July 1816)). In contrast, Maurice Godelier’s theory of “the people” underpinning the French Constitution is multigenerational and made up of ‘all citizens, dead and alive’. Constitutional scholarship is not, therefore, new to wrestling with ghosts.
The Living and The Dead
In any event, the sci-fi cognitive dissonance about communicating with the dead might only be felt in specific Global North or western communities. Indeed, the space between life and death is not always as concrete as enlightenment thinking indicates. Consider for example, Mexico’s Day of the Dead, where the dead are celebrated and invited to return for a family reunion or how in Ireland, at Samhain (Halloween), the line between the living and the dead is thinner, the dead are considered closer, and people are able to speak to them. Indigenous communities already recognise the role of the dead in the constituency. In a poem entitled, The Past (1970) by the Aboriginal poet Oodergoo Noonuccal the dead are understood as being part of the present:
Let no one say the past is dead
The past about us and within
For some First Nations and Indigenous Peoples, then, ‘the lands and waters is a living body that is inseparable from their spirits, ancestors and their nations’. In Australia, for example, the call for a ‘Voice to Parliament’ which would acknowledge Indigenous communities in Australia’s constitutional order is predicated on the fact that sovereignty is a “spiritual” idea for Indigenous and Aboriginal Peoples that is built on ‘ancestral ties to land and community’. As such, for some Indigenous Peoples the dead ‘continue to be part of the social world’. This approach to the dead, means that ‘the dead are not passive or mute substances but agential beings who remain in an ongoing relationship with the living and the contemporary Countries or land of their descendants’. It is this relational approach to agency that informs a recent call by scholars that the dead should be actors in postconflict truth-telling processes. Centring these indigenous approaches to the dead – and this more relational agency between the human and non-human – would see an active role for the dead in the political constituency. These active members of the community would be potential constituent power-holders by virtue of being part of that constituency. There would, however, be a potential practical challenge which would be how these more spectral members exercised their constituent power.
The Talking Dead
Now, through the techniques of Artificial Intelligence, so-called “Founding Fathers” can have their say on current constitutional issues. In Türkiye, AtamGPT embodies Mustafa Kemal Atatürk who was the 1st President of the Republic of Turkey (1923-1938). AtamGPT is an AI Generative Pre-trained Transformer (GPT) system that integrates ‘his views, speech style, and vision for the Turkish republic into its responses’ so as to ‘provide responses that mirror Atatürk’s characteristic directness and confidence, employing his distinctive language and tone’. This (or similar) technology has been used to create an Instagram video of Atatürk speaking.[1] It is not unimaginable that we could ask Atatürk through AtamGPT for his views on current issues in Türkiye. When the US Supreme Court seeks to hark back to the intentions of the founding fathers, it is not inconceivable that a judicial assistant might ask a similar GPT model “what would Madison say?”. It is now possible – through technology – for the founding fathers to have a continued constitutive role in the contemporary moment.
In the UK context, the closest thing we have to a “Founding Father” is Dicey. So, what would A V Dicey have to say about Brexit? Well, with the power of OpenAI ChatGPT, we can ask him:
“Here is a passage written in the style of A.V. Dicey, imitating the tone, structure, and diction of his Introduction to the Study of the Law of the Constitution, as if he were reflecting on Brexit:
That the United Kingdom has chosen, by solemn act and after appeal to the electorate, to withdraw from the European Union is a matter of grave constitutional import. It illustrates, in a striking fashion, the enduring vitality of the doctrine of parliamentary sovereignty — that cardinal principle of the English constitution whereby Parliament possesses the legal right to make or unmake any law whatever. The departure from the European Union, an entity whose laws claimed precedence over Acts of the Imperial Parliament, may be seen, not unjustly, as a reassertion of national self-government and legislative autonomy.”
And on it spookily continued, with brief references to the referendum and the Miller case.
The constitutive potential of digital ghosts raises serious legal questions about the shape of the political constituency in an era of ‘GhostBots’. These chatbots are designed to replicate deceased relatives, but they could have a wider appeal, as shown through the risk that employers might resuscitate our digital selves and make us work long after death, and the ethical and legal ramifications are already being explored. Sure, the practical ramifications of including the “dead” as constituent power holders – with a right to “vote” on a new constitution – would work against their inclusion in the constituency. But the development of ‘Digital Ghosts’ poses ongoing normative questions about the hold of previous generations on the constituent power.
[1] With special thanks to Aybüke Tezel for highlighting this example.
Ruth Houghton
Ruth Houghton is a Senior Lecturer at Newcastle Law School. She specialises in feminist approaches to constitutionalism, international law, and global constitutionalism.
