Solving the Supreme Court Problem

There have been 26 shootings on the grounds of K-12 schools in the U.S. so far this year. Classes will resume for most students over the next few weeks, and that tally will almost certainly go up. We all know this.

I’ve been giving some thought to the 2021 SCOTUS decision that made explicit a legal standard for interpretation of the Second Amendment that the court flirted with earlier in District of Columbia v. Heller. This standard, articulated in NYSRPA v. Bruen, in essence states that any legal restriction on an individual’s right to obtain or carry guns must have a direct antecedent in the prevailing law of 1791 to pass constitutional muster. This proclamation has since dissolved scores of municipal and state gun laws, and has forced lower court judges into fits of intellectual contortion to determine whether restrictions predating flush toilets in America should apply to carrying an assault rifle onto an airplane.

In authoring the opinion for the 6–3 majority in Bruen, Justice Thomas notes, “the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.” Thomas may have skipped blithely through the logical minefield of this argument, but I’ve been having a hard time traversing the same path. How can this document be both fixed in meaning AND apply to circumstances unimaginable to its authors?

By this logic, if the Constitution stipulated a speed limit for motorized vehicles on public roads, based on the Founders’ understanding of Cugnot’s remarkable steam-powered tricycle of 1769, no state or federal law could permit cars to exceed its top speed of 2.25 mph. Obviously absurd, right? But more absurd than constraining our regulation of modern firearms based on the Founders’ understanding of the state of the art in “arms” as the flintlock musket?

It seems to me there are two possible paths out of Thomas’s minefield:

1. We could acknowledge simultaneously that the right of Americans to carry single-shot flintlock firearms shall not be infringed, but that this right does not extend to weapons with capabilities exceeding theirs.
2. Or, we could resurrect the Founders, present to them the technologies and exigencies that have diverged from their time, and ask them whether they’d care to reconcile present circumstances with their original intent. After all, isn’t the discernment of the Founders’ intent the bedrock upon which conservative Constitutional scholarship rests, particularly the Originalist branch espoused by Thomas and Scalia?

If we can agree, then, that the interpretation of the second amendment and all such contentious matters dividing American society could be settled once and for all if the Founders were here to adjudicate them, then rejoice! The bitter polarization jeopardizing our democracy will soon dissipate like the morning fog to reveal a new era of harmonious cooperation. Because my friends, my fellow Americans, we can bring the Founders back and we can put them in charge. Think of the coming dawn not as the Pax Americana, but the Pax Magnus Linguae Modellus.

The Founders were prolific writers, and in many cases extraordinary polymaths. The best of them left behind a body of written work so extensive, so wide-ranging in subject matter and reflective of their inner lives, that contemporary AI large language models have ample source material to reproduce their thought processes and provide us with simulacra so accurate that their fellow Constitutional Conventioneers would find them indistinguishable from the original article.

Why debate Madison’s intent in choosing this word over that in Article 2 when we can ASK HIM what he meant? We can’t possibly discern whether Alexander Hamilton would see cryptocurrencies as securities by studying his oversight of the Treasury back when the government’s annual budget was $639,000; fortunately, we don’t have to. We can set him up with a Coinbase account, let him read everything written on the subject since Satoshi’s whitepaper, then let him make his own call.

To be clear, we can’t bring all of them back. If you’re even passingly familiar with some of the characters present at the first Constitutional Convention, you’ll agree that’s probably a good thing. We need a certain volume of written work to ensure the fidelity of a Founder’s AI clone, and not all of them left behind a sufficiently deep and disparate literary estate to train an LLM to a photo-real level of resolution. That’s not a bad thing, though; we all know what happens to the signal-to-noise ratio of meetings beyond a certain threshold number of attendees. Seven will suffice:

Thomas Jefferson, a meticulous record-keeper and essayist on topics ranging from law and government to science and philosophy. Believed to have written somewhere around 19,000 letters. I’d be surprised if there aren’t a few chatbots out there already trained by Jefferson stans.

John Adams, a dedicated diarist and correspondent who wrote an extensive defense of the Constitution, pre-revolution ruminations on British law, a huge trove of letters exchanged with his brilliant wife Abigail, and hundreds of essays, reports, memoranda, and speeches from the center of the action when our country was born.

Alexander Hamilton, whose work as a lawyer contributed to a huge body of legal writing and opinions. He was also one of the main authors of The Federalist Papers, and his correspondence as the first Secretary of the Treasury is essential to our understanding of the founders’ perspective on economic policy.

James Madison, the “father of the Constitution,” whose detailed notes taken during the Constitutional Convention are one of the most important historical resources in understanding the document’s history and the thinking of all contributors. He wrote the Bill of Rights. Mic drop.

Mercy Otis Warren, political writer and propagandist whose body of work includes a three-volume history of the American Revolution full of vital insight into the era’s politics and principles.

Benjamin Franklin, another founding polymath who wrote prolifically on a wide range of topics in addition to politics; including science, history, philosophy, and morality.

Prince Hall, whose body of written work isn’t as extensive as the framers of the Constitution, but is nevertheless essential to our understanding of African American experience at the time, and the state of advocacy for the rights and freedoms the Constitution initially failed to guarantee them. His petitions, letters, and speeches will ensure the perspective of Black Americans at the time of the nation’s founding are represented in our council of elders.

The best part is that this is infinitely scalable. Once our AI Founders have been coded and trained, the only limit to their Solomonic workload would be computing resources, and those would be nominal. You could probably run all seven members of our new Supreme Court on a single server rack.

Waitaminit, I hear you sputtering, our new Supreme Court? Well, naturally this council would replace the analog version. The majority of our outdated, meat-based justices earnestly believe that the court’s only role in our legal system is to determine the intent of the framers of the Constitution 236 years ago. When those questions can be answered definitively with a few mouse clicks, what possible use could we have for these error-prone proxies?

Say goodbye to the backlog in federal courts: every case now plodding around the judicial mill wheel can be thoroughly reviewed, considered, and adjudicated in a matter of days by the architects of our legal system. The chat logs of their debates would be a joy to read, and the decisions they rendered would have perfect, indisputable adherence to the intent of our august forebears.