The Constitutional Dimension of AI: A Phenomenology of Cybernetic Power

Andrea Simoncini

Sovereignty, power, and freedom are three terms that, by nature (i.e. as empirical findings), are conflicting and divergent. Whatever you may define as freedom, it is in permanent tension with any kind of power, especially that supreme power we call “sovereignty.” Sovereignty, for its part, classically, is superiorem non recognoscens, that is it recognizes no superior power. Only the historical practice of constitutionalism—in its modern and contemporary sense—has attempted to reasonably reconcile these terms. As an offspring of the French and American Revolutions of the late eighteenth century, constitutional law emerged as an attempt to “keep the wolf” of sovereignty “out of the fold,” delimiting the area of “legitimate” powers through law, in order to protect and promote individual freedom. In this sense, constitutional law has always adapted and adjusted its rules to the evolution of power. The central argument of this Article is that—if we accept this broad definition of constitutionalism, whereby institutional systems for the legal protection of liberty always mirror the concrete allocation of power—we are currently facing a new phenomenology of power, and this requires a corresponding evolutionary leap in the protection of constitutional freedoms.