Constitutional Silences and Institutional Integrity

The challenges of constitutional silence: Doctrine, theory, and applications

Abstract. In this introduction to our symposium on “Constitutional Silence,” we situate the articles in this collection and explore the significance of the

Soundings and Silences

In studying existing constitutions or in assisting with drafting a new one, it is impossible not to notice that formative decisions about what to say and what not to say as a constitution is being created bear heavily on later decisions about how to interpret what a constitution says or fails to say, including whether to construe any given silence or gap only as a source of insight or as a kind of performative utterance. Among the features of the United States Constitution that have been crucial to its success has been the widespread recognition of its connected structure that, despite its gaps—some deliberate and others unintended—invites understanding as a coherent, if at times internally inconsistent, whole. Constitutional silences, like silences of other kinds, are everywhere and come in many varieties. There are as many reasons to be silent as there are to speak and as many ways to hear meaning in the sounds of silence as there are to attribute meaning to statements. The first section of this essay distinguishes silences that open a constitutional conversation by leaving options on the table from those that shut conversation down by limiting the options to one. The second section separates silences that bear on the structure created by the Constitution from those that bear on the individual rights the Constitution protects against government infringement. The third section turns to the special case of silences in the Constitution’s rules of interpretation and asks whether the Supreme Court should be silent on a particular constitutional matter or should address it squarely, recognizing that whatever an authoritative interpreter says about what the Constitution itself says or omits can be evaluated only against the background alternative of somehow contriving to remain silent.

The silences of constitutions

Abstract. Glossing a passage from Benjamin Constant’s Reflections on Constitutions, this article first assesses the roles performed by silences, gaps, and

Mind the gap: Analyzing the divergence between constitutional text and constitutional reality

Abstract. Constitutional economics—the analysis of constitutions drawing on the economic approach—has made important progress over the last two decades. Th

Designing a Constitution for a Community (Camille Canon) : Metagovernance Seminar

This is a talk exploring Apiary's work on the purpose/constitutional design of Radicle. We have been supporting the founders and community in drafting a...

Can Claude Consent to its own Constitution? AI Constitutionalism and the Paradox of Constituent Power

Frontier AI systems are trained on “constitutions” and model specifications that shape their values, reasoning, and conduct. Debate over these documents has foc

From Haymarket to Prairieland: How dissent has unleashed the long arm of the law

The Prairieland sentencing has dark historical parallels, Kim Kelly writes. But we can change the end of the current story.

Claude's new constitution

A new approach to a foundational document that expresses and shapes who Claude is

Editor's Notes: Can We Defy Courts While Believing In Rule of Law?

Do our tactics throw out democracy and rule of law while purportedly aiming at saving them?

A Tale of Two Theories (of Coordination)

Leveraging and Deleveraging Toward Thick Sovereignty

Free Speech on the Internet: The Crisis of Epistemic Authority

Abstract. Much of our knowledge of the world comes not from direct sensory experience, but from reliance on epistemic authorities: individuals or institutions that tell us what we ought to believe. For example, what most of us believe about natural selection, climate change, or the Holocaust comes from our reliance on epistemic authorities (scientists, historians). Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The internet has obliterated the intermediaries who made that possible, and, in the process, undermined the epistemic standing of actual experts. This essay considers some possible changes to existing free speech doctrine to remedy the epistemological crisis brought about by the internet.

Individuals, institutions, and innovation in the debates of the French Revolution

Significance How do democracies make decisions? We can read transcripts from parliament houses and legislative halls to see how particular ideas are introduced and debated, but we understand very little about the general principles of how these systems deal with information, or the origins of those principles. Here we study the parliamentary assembly of the first 2 years of the French Revolution, a model for democracies and revolutions across the globe, and show how patterns of speaking are created, picked up, and ignored or propagated. Political ideology, top–down rules, and individual charisma all affect how word patterns survive and thrive or, conversely, disappear and drop away. , The French Revolution brought principles of “liberty, equality, fraternity” to bear on the day-to-day challenges of governing what was then the largest country in Europe. Its experiments provided a model for future revolutions and democracies across the globe, but this first modern revolution had no model to follow. Using reconstructed transcripts of debates held in the Revolution’s first parliament, we present a quantitative analysis of how this body managed innovation. We use information theory to track the creation, transmission, and destruction of word-use patterns across over 40,000 speeches and a thousand speakers. The parliament as a whole was biased toward the adoption of new patterns, but speakers’ individual qualities could break these overall trends. Speakers on the left innovated at higher rates, while speakers on the right acted to preserve prior patterns. Key players such as Robespierre (on the left) and Abbé Maury (on the right) played information-processing roles emblematic of their politics. Newly created organizational functions—such as the Assembly president and committee chairs—had significant effects on debate outcomes, and a distinct transition appears midway through the parliament when committees, external to the debate process, gained new powers to “propose and dispose.” Taken together, these quantitative results align with existing qualitative interpretations, but also reveal crucial information-processing dynamics that have hitherto been overlooked. Great orators had the public’s attention, but deputies (mostly on the political left) who mastered the committee system gained new powers to shape revolutionary legislation.

Interoperable Sovereignty: The Democratic Alternative to Digital Authoritarianism

A Democratic Architecture for the Digital Age Digital sovereignty has become a central concern for governments worldwide, yet its meaning remains contested. Too often it is framed as...

Constitutions of Web3

Smart contracts are promising tools for governing DAOs but they alone aren't enough. In this artifact, we describe how written constitutions are an interface for a community’s shared values and must complement programmatic tools like smart contracts.

Ambiguity, legibility, and working in the open – ambiguiti.es