by Dr. Lance B. Eliot
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Key briefing points about this article:
- Many assert that the United States Constitution is a living document
- Acrimonious debates occur over what the meaning of this “living” document ought to be
- Numerous camps have evolved about how to properly interpret the Constitution
- In modern times there are digital twins being developed for all kinds of entities
- It is useful to consider crafting an AI-based digital twin of the Constitution
There is little doubt that the United States Constitution is an amazing document and provides a stellar example of how mankind can devise laws that seek to balance governmental powers and the fundamental rights of the people. Imagine what might have happened if the Constitution had not been crafted. One can only shudder at where we might be today.
Suppose that the Constitution had indeed been crafted but that it was worded differently than what was finally composed. Where would we be? Some might argue that we could very well be in the same status of still trying to figure out what the framers intended versus what their words seem to state. Overall, the words used in the finalized version are still merely words, suggesting that they are open to interpretation and provide viably alternative meaning.
That’s partially why some refer to the cherished document as the living Constitution.
Please give deep thought to the use of the word “living” in this context. Many legal scholars and even the everyday public say that the U.S. Constitution is a living document, but few if any would argue that it can actually breathe on its own or take a step as a living animal might do. Unless you are off your rocker, the notion of living herein is not something that is sentient and instead proffers the connotations of a written sentiment that is malleable and interpretably changeable over time.
How far though can one, or should one, bend this statuesque marker?
Some are quick to point out that the developers of the Constitution did not have rocket ships that could get to the moon and nor did they have jet planes to fly them around the emerging nation. In that sense, when they wrote and ratified the Constitution, there was much unknown to them about the future. This logically leads to the assertion that the words of the Constitution should be viewed as a framework or template since it could not have anticipated the myriad of societal changes that would subsequently arise.
There are those that lament that by caving in and agreeing that the Constitution is merely a framework, you open a Pandora’s box of bad tidings. An ominous slippery slope is started. One way or another, we will inadvertently slide our way into ever more distancing interpretations of what the framers intended. Think of the famous example of whispering into one person’s ear in a long line of people, each of which attempts to whisper the same message to the next in line, and inevitably at the end you have a message that no longer resembles the original one. An inherent danger awaits us as we seemingly cast and recast the Constitution over time, ultimately usurping the wisdom embodied in the venerated document, some so exhort.
President Woodrow Wilson in 1908 had stated that “living political constitutions must be Darwinian in structure and in practice” (indicated in his esteemed treatise on the Constitutional Government in the United States). Perhaps all constitutions, no matter when written and regardless of how carefully composed, would forever be insufficient as a means of codifying the law. Mankind is bound by the laws of nature and thus a document establishing the rule of law will always be subject to nature’s ways, including the need to adapt for survival’s sake.
The framers were not blind to the likelihood of their work being reinterpreted and recast. Historians point out that there was much debate about how to try and word the Constitution. The hope was to use relatively precise language and seek to avoid overly wild or far-reaching offshoots that would no longer resemble what they had in mind. Of course, language is a dicey thing that intrinsically is semantically indeterminate. Trying to be ironclad by the words that you use is somewhat futile as there is indubitably alternative meaning that can be derived.
Numerous camps exist for how to appropriately interpret the Constitution.
One of the most well-known is the originalists. Generally, without drawing ire for being overly succinct herein, the notion of originalism entails staying as close as possible to the original meaning of the Constitution.
This could be based on what the framers had in mind. This could also be based on what the people at large had as an understanding of what the document stated. As an example of the thorny debate about what originalism constitutes, consider these remarks that Supreme Court Justice Scalia gave in his 1996 speech detailing his viewpoint of constitutional interpretation: “The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
In short, there are ongoing debates about the meaning of the Constitution, including and especially acrimonious debates about how we ought to be deriving that meaning.
Let’s shift gears and consider two newer avenues that might help these debates. One realm of more recent note is the emergence of so-called digital twins. The other arena consists of advances in Artificial Intelligence (AI).
For details on this and other AI and law topics, see my book entitled “AI and Legal Reasoning Essentials” at this link here: https://www.amazon.com/Legal-Reasoning-Essentials-Artificial-Intelligence/dp/1734601655
Digital Twins And AI Usage
A digital twin is considered to be a digitally based replica of an entity. The entity can be a non-living contraption such as an airplane engine or a turbine, or it can be a living being. Digital twins were initially conceived as a means to aid in the manufacturing and deployment of complex machinery. If you were going to make an aircraft engine, it made sense to first craft a computer-based simulation to ascertain whether the engine will work. Furthermore, once the aircraft engine is manufactured, you can use its digital twin to try and ascertain why the engine might be faltering while in the field.
Digital twins are getting increasingly sophisticated via the advent of AI being infused into the digital twin capabilities.
Here’s then the idea to ruminate on: Should we embark upon an AI-enabled digital twin of the United States Constitution?
The idea is being bandied around and provides the possibility of turning the non-living “living” Constitution into something that would ostensibly be enlivened by being actively responsive and altogether quite useful for judicial efforts.
Do not though assume that this will remove us from the morass about the meaning of the Constitution. In some ways, it could illuminate the meaning, whilst in other ways, it might spark added contentions.
Maybe best to keep your eyes wide open and be on the watch for that AI-based digital twin, and ponder what John Adams, Thomas Jefferson, James Madison, and the rest of the crew would have thought about such modern-day mechanizations of their prized work.
For the latest trends about AI & Law, visit our website www.ai-law.legal
Additional writings by Dr. Lance Eliot:
- For Dr. Eliot’s books, see: https://www.amazon.com/author/lanceeliot
- For his Forbes column, see: https://forbes.com/sites/lanceeliot/
- For his AI Trends column, see: www.aitrends.com/ai-insider/
- For his Medium column, see: https://lance-eliot.medium.com/
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