The Emergence of Digital Constitutionalism within the Historical Trajectory of Constitutionalism

Abstract

Constitutionalism is a legal-political concept essentially linked to the need to limit power. This concept presents continuous and important historical evolution, from Antiquity to Modernity. “Digital Constitutionalism” can be preliminarily presented as the projection of values of contemporary constitutionalism in the context of a digital society. The characterization of contemporary society as being “digital” is due to an increasingly marked presence, currently, of technological elements, especially artificial intelligence. Technology instrumentalizes interactions in both public and private spheres. As a result, technology resizes the relationships between individuals and between State and people. The growing rise of digital private powers challenges the traditional characteristics of constitutional powers, prompting a reflection on how Constitutional Law can contribute to solving some challenges of the Digital World. The article proposes a reflection on several questions: How does Digital Constitutionalism fit into the historical evolutionary process of Constitutionalism? How have States and private organizations acted to promote constitutional balance in digital spaces? What is the relationship between Digital Constitutionalism and fundamental rights? What are the main impacts of Digital Constitutionalism on Judicial Review and the democratic regime? The theme lies at the intersection of important fields such as the theory of constitutionalism and the constitution, the organization of powers, the Rule of Law, and fundamental rights, and holds significant centrality on the international public agenda. The analysis will be conducted from the perspective of Brazilian law, while also drawing on international literature and examining normative instruments adopted in various countries, such as the United States, the European Union, and China, in order to provide a comparative and comprehensive view of the subject.