Reclaiming Constitutional Authority of Algorithmic Power

2025-08-12

AI Summary

Contemporary AI systems are increasingly embedded in core public functions—such as welfare allocation, legal adjudication, and housing and healthcare provision—yet prevailing governance frameworks neglect the constitutional foundations of algorithmic power: specifically, *who* authorizes such power, *through which institutions*, and *under what conditions* it may exercise public authority. Method: We propose a theory of “algorithmic constitutionalism,” centered on covenantal authority and the right to legitimate resistance, integrating federalist design, the non-delegation doctrine, and structural accountability jurisprudence, and drawing on early Reformed political thought for institutional extrapolation. Contribution: We establish three constitutional principles—participatory authorization, communal representative constraint, and individual rights of resistance—reconceptualizing algorithmic governance as an accountable mechanism grounded in popular sovereignty. Moving beyond technical regulation and rights protection, this work offers the first systematic legitimacy framework for algorithmic systems, anchored in civic participation, democratic representation, and freedom of conscience.

Technology Category

• Philosophy and Ethics of AI: Bias, Fairness & Equity
• Humans and AI: Voting
• Search and Optimization: Algorithm Configuration

Application Category

• Responsible Web: Algorithmic accountability and transparency on the web
• Economics, Online Markets and Human Computation: Fairness and ethical considerations in crowd work and in human-in-the-loop AI systems
• Systems and Infrastructure for Web, Mobile and WoT: Applied ML and AI for Web-based mobile applications

Abstract

Whether and how to govern AI is no longer a question of technical regulation. It is a question of constitutional authority. Across jurisdictions, algorithmic systems now perform functions once reserved to public institutions: allocating welfare, determining legal status, mediating access to housing, employment, and healthcare. These are not merely administrative operations. They are acts of rule. Yet the dominant models of AI governance fail to confront this reality. The European approach centers on rights-based oversight, presenting its regulatory framework as a principled defense of human dignity. The American model relies on decentralized experimentation, treating fragmentation as a proxy for democratic legitimacy. Both, in different ways, evade the structural question: who authorizes algorithmic power, through what institutions, and on what terms. This Article offers an alternative. Drawing from early modern Reformed political thought, it reconstructs a constitutional framework grounded in covenantal authority and the right of lawful resistance. It argues that algorithmic governance must rest on three principles. First, that all public power must be lawfully delegated through participatory authorization. Second, that authority must be structured across representative communities with the standing to consent, contest, or refuse. Third, that individuals retain a constitutional right to resist systems that impose orthodoxy or erode the domain of conscience. These principles are then operationalized through doctrinal analysis of federalism, nondelegation, compelled speech, and structural accountability. On this view, the legitimacy of algorithmic governance turns not on procedural safeguards or policy design, but on whether it reflects a constitutional order in which power is authorized by the governed, constrained by law, and answerable to those it affects.

Problem

• Addressing constitutional authority of algorithmic governance systems
• Questioning legitimacy and authorization of AI public power
• Proposing principles for lawful delegation and resistance rights

Innovation

• Constitutional framework from Reformed political thought
• Operationalizing principles through doctrinal analysis
• Power authorized by governed and constrained by law