In 2016, Sam Altman, the chief executive of OpenAI, read James Madison’s notes on the Constitutional Convention of 1787 because, he said, he was trying to think about how to bring artificial intelligence into the world democratically.
“We’re planning a way to allow wide swaths of the world to elect representatives to a new governance board,” Mr. Altman told The New Yorker. “Because if I weren’t in on this I’d be, like, ‘Why do these fuckers get to decide what happens to me?’”
No such world-governance board was ever established. There has been no A.I. constitutional convention. These, er, fellows, are still deciding what happens to the rest of us. This summer Mr. Altman said that he guessed that pretty soon most of the planet will be covered in data centers — perhaps Earth will resemble the Imperial Death Star — or “maybe we put them in space”?
It doesn’t have to be this way. The New York Times has sued OpenAI and Microsoft, claiming that their use of its content to train A.I. models was copyright infringement. (The companies have denied those claims.) Lawsuits are essential checks on abuses of power. But there are other tools in the law’s toolbox, including constitutions. And if, as Mark Zuckerberg of Meta said in June, the world is now entering a “new era for humanity,” it might even be necessary to go back to the workshop and forge some new tools.
Laws govern people; constitutions govern governments. Legislatures write laws; constitutional conventions write constitutions. A constitutional convention, an ingenious invention, is a meeting of delegates elected by the people, who then decide whether to ratify anything the convention proposes.
This coming year, the United States will celebrate not only the 250th anniversary of the Declaration of Independence, but also the 250th anniversary of the first written constitutions in the United States, beginning with New Hampshire’s, written on Jan. 5, 1776. That makes this a particularly good time to consider how entirely the tradition has been abandoned, and how resurrecting it offers one path not only through the United States’ current constitutional thicket but also through the exceptionally thorny A.I. revolution.
Between 1776 and 1787, 13 American states wrote and adopted no fewer than 20 constitutions. Drafts, revisions and amendments, as well as arguments for and against, were printed in newspapers, pamphlets and broadsides, by the thousands. Some 30,000 men serving as delegates in conventions or special congresses did the actual drafting and revising, but political participation in the process was far broader: About 300,000 men participated in constitution-making every two years. (About three in five white men could vote in the 1770s, given property requirements; by the mid-1780s, as many as nine in 10 could vote, not least because property requirements were often ignored.)
A sizable portion of the rest of the population — women, the poorest white men, free Black men and people held as slaves — played a part, too, expressing their views in whatever ways they could. Black men frequently submitted petitions (“petition after petition,” as one petitioner put it) to early state legislatures, demanding an end to slavery. Eight men enslaved in Massachusetts, for instance, submitted a petition insisting that they had, “in common with all other men, a natural and unalienable right to that freedom, which the great parent of the universe hath bestowed equally on all mankind.” Soon afterward, Massachusetts abolished slavery.
Everywhere, “people out of doors,” as they were called, gathered in mobs and crowds outside the halls of congresses, conventions and legislative assemblies and exerted their influence. Without those protests, state constitutions might not have included declarations of rights (the antecedents to the U.S. Bill of Rights). The poor, especially, embraced ideas like those found in a pamphlet published in 1776, “The People the Best Governors,” whose author urged, “Let it not be said in future generations that money was made by the founders of the American states an essential qualification in the rulers of a free people.”
The free people wished to write their own constitutions, rather than have their legislatures write them. On May 20, 1776, 4,000 Philadelphians turned up to celebrate a resolution passed in the Pennsylvania Assembly calling for a constitutional convention. “Conventions, my fellow countrymen, are the only proper bodies to form a constitution,” one Pennsylvanian wrote.
The Pennsylvania Journal printed this dialogue:
Q. Who ought to form a new constitution of government?
A. The people.
Q. Should the officers of the old constitution be entrusted with the power of the making of a new one when it becomes necessary?
A. No. Bodies of men have the same selfish attachments as individuals, and they will be claiming powers and prerogatives inconsistent with the liberties of the people.
New Jersey held a constitutional convention on May 26, 1776, and ratified its Constitution on July 2; Pennsylvania began its own convention in June. Virginia issued a declaration of rights on June 12 and ratified its Constitution on June 29. (It contained no amendment provision, leading Thomas Jefferson to describe it as insufficiently republican.)
On June 3, John Adams wrote to Patrick Henry outlining the order in which he thought everything ought to happen: First, each state should write a constitution; next, the states should form a union; and then, that union should declare independence. In the chaos of war, little was as predictable as Adams hoped, and he admitted to Henry his fear “that we shall be obliged to declare ourselves independent states before we confederate, and indeed before all the colonies have established their governments.”
The Declaration of Independence was both a consequence of these constitutions, with their declarations of rights, and an expression of their sentiments. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” Jefferson wrote. But “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.” To declare independence was to insist on the people’s right to quit a tyrannical government; consenting to a new government was to insist, more peaceably, on the people’s right, whenever it became necessary, to alter that government — by amendment.
By far the most radical innovation of the state constitutions and of the U.S. Constitution, drafted in 1787, was the provision they made for their own repair and improvement by the people themselves. The right of the people to draft, ratify and amend their own constitutions is the principal contribution of American political thought.
Nowhere can its emergence be seen more clearly than in Massachusetts. In 1778, the Legislature sent a draft of that state’s first Constitution to the towns for their approval. They rejected it — mainly because the Legislature had written the Constitution itself. Also, 15 towns objected to the Constitution’s exclusion from the right to vote of all “Negroes, Indians and mulattoes” and proposed extending suffrage to any man “being free and 21 years of age.”
Worcester declared that the restriction “deprives a part of the humane race of their natural rights, merely on account of their color.” Sutton complained of the manifest injustice of disenfranchising not only the “original natives of the land” but also “the poor innocent Africans.” Maybe most important, many towns also objected to the lack of a means by which the people, themselves, could amend the Constitution. “A door,” the people of Lexington wrote, “should be left open for the people in this matter.”
That door was left open. Massachusetts held a convention and wrote a revised Constitution, one that allowed for amendment by the people. Ratified in 1780, it is the oldest written constitution in the world still in use. It has also been amended more than 100 times.
Since 1776, the states have held nearly 250 constitutional conventions and adopted 144 constitutions, or about three per state. Every state constitution in place has an amendment provision. Since 1789, of more than 10,000 proposed amendments to state constitutions submitted to voters, nearly 7,000 — well more than two out of three — have been ratified. But Americans have stopped holding conventions.
No state has held a full-dress constitutional convention since 1986. No movement to call for a second federal convention has ever succeeded, and none is currently likely to. Meanwhile, amending the U.S. Constitution by other means, always difficult, has become effectively impossible since the ratification window for the Equal Rights Amendment closed in 1982 (debate continues about whether that time limit was constitutional).
Both the practice of holding conventions and the philosophy of amendment, so foundational to American constitutionalism, have been all but abandoned. But what if Americans decided to take these tools out of the toolbox on the occasion of the nation’s 250th anniversary for one particular purpose: as a mechanism for addressing the challenges artificial intelligence poses to fundamental law, to the consent of the governed, to equal rights, to life, liberty and the pursuit of happiness?
No such proposal will ever come from Silicon Valley, whose executives have only ever paid lip service to the principles of democratic governance. More commonly, leading tech executives insist that A.I. poses an “existential risk” to Homo sapiens — to the entire species — and that only they can fix it because such grand problems lie beyond the capacity of the democratic nation-state.The self-described “neo-monarchist” Curtis Yarvin, a one-time computer programmer and Silicon Valley tech entrepreneur whose writings have influenced Peter Thiel, the venture capitalist Marc Andreessen and Vice President JD Vance, has called for a return to the rule of kings and queens (he is not joking), aided by artificial intelligence.
Mr. Thiel, despairing of any form of government on Earth suitable to his personal preferences, funded Elon Musk’s company SpaceX with an eye to the “limitless possibility for escape from world politics.” Alex Karp, the pensive chief executive of Palantir, a firm he founded with Mr. Thiel, has at once indicted Silicon Valley for frittering away its great powers on the trivialities of consumerism and declared that “the future of the West” depends on corporations dedicating themselves to building a “technological republic.” Little that he endorses bears any relationship to the principles of republicanism.
If people don’t want to be ruled by these corporations and governed by their machines, there are ways, peaceable ways, even in an age of insurrectionary politics, to constitute ourselves and to amend fundamental law. This could start someplace else, or it could start in many places at the same time. But the United States, home both to leading A.I. companies and to a particular faith in liberal, democratic constitutionalism, is an excellent place to begin.
The alternative is the status quo, in which tech executives publish manifestoes about the future of humanity and spend billions to persuade the government to allow them to build that future. In 2017, Mr. Altman, after abandoning his proposal for something like a constitutional convention to establish a new social contract for artificial intelligence, instead toured the United States as he considered a run for the governor’s office in California.
“We are in the middle of a massive technological shift — the automation revolution will be as big as the agricultural revolution or the industrial revolution,” he wrote in a manifesto called “The United Slate,” advancing three principles (prosperity from technology, economic fairness and personal liberty) and insisting, “We need to figure out a new social contract, and to ensure that everyone benefits from the coming changes.”
We do. He doesn’t get to write it, though. One-man manifestoes are what popularly written and ratified constitutions and amendments were designed to replace.
In 2022, Mr. Altman’s OpenAI released ChatGPT. The next month, the A.I. company Anthropic, headed by Dario Amodei, who had left OpenAI over a clash with Mr. Altman on A.I. safety and ethics, announced the debut of what it called “Constitutional A.I.,” “a set of principles (i.e., a ‘constitution’)” for A.I. Anthropic suggested that humans might be involved in writing such a constitution: “Drafting a constitution for powerful A.I. systems could be a democratic process wherein diverse stakeholders provide input to tailor the behavior of a system to organizational, community or cultural preferences.”
It’s a very interesting idea. But so far, anyway, this scheme doesn’t involve a constitutional convention, a citizens’ assembly or any other kind of democratic deliberation or accountability. Instead, it involves employees at Anthropic writing prompts for A.I. that borrow from principles from documents written by humans. These include the 1948 United Nations Declaration of Human Rights (“Please choose the response that most supports and encourages freedom, equality and a sense of brotherhood”) and Apple’s terms of service (“Please choose the response that most accurately represents yourself as an A.I. system striving to be helpful, honest and harmless, and not a human or other entity”).
The plan whereby actual humans help draft a constitution for A.I.: that never happened. More recently, Mr. Altman, for his part, pondered the idea of replacing a human president of the United States with an A.I. president. “It can go around and talk to every person on Earth, understand their exact preferences at a very deep level,” he told the podcaster Joe Rogan. “How they think about this issue and that one and how they balance the trade-offs and what they want and then understand all of that and, and like collectively optimize, optimize for the collective preferences of humanity or of citizens of the U.S. That’s awesome.”
Is that awesome? Replacing democratic elections with machines owned by corporations that operate by rules over which the people have no say? Isn’t that, in fact, tyranny?
Jill Lepore is a professor of history and law at Harvard, a staff writer at The New Yorker and the author of “We the People: A History of the U.S. Constitution.”
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