Against Digital Constitutionalism

Digital Constitutionalism makes sense. We can all see the problem it tries to solve. And like many other ‘constitutionalisms’, Digital Constitutionalism is a project fuelled by the institutional hope of striking a power equilibrium between competing actors. In seeking this equilibrium in the digital realm, however, important assumptions are made and serious questions are being ignored or oversimplified. Firstly, Digital Constitutionalism ignores the material reality of digital technologies and their production logics thereby mistaking ‘objects’ with ‘subjects’. Secondly, Digital Constitutionalism’s myopic lenses -almost inevitably- lead to narrations of ‘constitutional moments’ in the digital world caused by digital powers and digital revolutions, separate from the histories of private corporations in the global stage. Finally, Digital Constitutionalism falsely implies the absence of law rather than its presence -or indeed irrelevance- as major contributing factors to this ‘constitutional crisis’. On this account, it seeks to respond to the ‘digital revolution’ with a ‘legal revolution’. But Digital Constitutionalism may come at the price of exerting disproportionate discursive power in the field of Law and Technology. In an attempt to revert these dynamics, this note invites legal scholars to look back to think differently, and to engage critically with the long evolution of legal regulation that has enabled the emergence of the corporate form and the consolidation of economic and political power on the global stage. This historicization, the note concludes, may ultimately lead us to turn inward and reflect on the role of legal experts and professionals in the consolidation of private power in the global political economy. It may even inspire us to break free from restraining mental maps and thinking patterns and to unlock novel intellectual and methodological pathways in the field of Law and Technology. And if it takes a Digital Constitutionalism to come to this, it will have been worth it.