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Digital Constitutionalism: Requirement of the Modern Era

Meaning of Digital Constitutionalism

The phrase Digital Constitutionalism is a combination of two separate words digital and constitutionalism. The word digital is an adjective representing information technology whereas; the word constitutionalism denotes the ideology of limited government by removing the monarchical rules. The main idea of constitutionalism is to restrict the authority of the government under the determination of laws and the constitution. Also, as per John Locke and the founders of the American republic, Constitutionalism is the idea as to which the powers of government should be legally limited, and further, it is the responsibility of the government itself to regulate these limitations.

As per the above-prescribed definitions, the term digital is placed here beside the term constitutionalism still, the meaning of both the terms have their separate identities which means the term digital do not represent the term constitutionalism here. Further, it jointly talks about the modern concept of constitutionalism which is the requirement of this digital era.[1] It articulates a set of values, rights and norms to defend the interest of individuals during this digital era. Also, the protection of internet users is not the only aim of this ideology but the scope here is much wider.

Digital Constitutionalism refers to Modern Constitutionalism here

Modern constitutionalism is the ideology that came into being at the end of the 18th century. It is argued that the aim of digital constitutionalism can be understood by learning about the purpose of modern constitutionalism in the digital society. According to Michel Rosenfeld modern constitutionalism promotes a series of norms to impose limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights[2].

As per Niccol Machiavelli, the father of modern constitutionalism, this system works on three central beliefs: first, that the government should serve justice and the common good. Second, the government should do so within the ambit of law and rules. Third, the checks and balances need to be maintained on all these activities through the provisions of the constitution.[3] Therefore, the overall aim of modern constitutionalism is the protection of fundamental rights and the restriction on the emergence of power outside any control. [4]

Need of Digital Constitutionalism

Over the past few years, the emergence of digital technology has transformed societies. Individuals can now enjoy tremendous growth in every sector but, at the same time, new threats are also making survival impossible. Hence the need for Digital constitutionalism arises to tackle the following threats:

Rise in the Digital Transformation

Now the technologies, individuals, economies and perhaps sovereignty itself are shifting towards the digital world. Due to which the undue corporate control is also going into the private hands. The digital environment facilitates the cross border services and protection of individual rights but along with that, it has also led to serious challenges for fundamental rights such as data protection, freedom of expression and privacy.

Further, this technological advancement had given them more power in private hands by allowing their operations in a transnational context. Hence, To re-establish the democratic system, there is a need to translate the values of our leading constitutionalism as per the requirements of digital society.

Discretionary power in the hands of Private sector

With the advent of time, the liberties granted to online platforms are also getting increased. Now they can exercise sovereign power over their online spaces and have exclusive control over the public regulatory frameworks. In other words, due to the recognition of these digital platforms, the threat to fundamental rights and the private powers in the algorithmic society get increased to an extent. [5]

Further, the private digital sectors have also displaced the government powers over time, by unilaterally establishing the rules for the internet user. It shows that these online sectors are working as a monarch in this digital era while performing the functions which are usually performed by the appropriate public authorities.[6] Hence, it is high time to put a check on the possibilities of citizens becoming the subjects of corporate rulings.

Now with the advent of the internet, the need for checks and balances on the power of the private sector is also getting increased; digital constitutionalism needs to work as a shield against the discretionary powers in this digital environment and the government should establish a strong rule of law to evaluate the legitimacy of online governance.

Talking about the decisions made by these digital social media platforms creates a huge impact on the personal as well as the social life of its users hence; these decisions need to be taken following the established rule of law and not in a discretionary or arbitrary manner. Along with that the platform also needs to give the proper reasoning why they had given the particular decision. These are the fundamental principles that need to be adhered but the system is currently in ignorance of it.

  4. Jeremy Waldron, Constitutionalism: A Skeptical View (N.Y.U. School of Law, Public Law Research Paper No. 1087, May 1, 2012),
  5.; European Constitutionalism Beyond The State (Joseph H. H. Weiler & Marlene Wind eds., 2003).
  7. Luca Belli & Jamila Venturini, Private Ordering and the Rise of Terms of Service as Cyber-Regulation, 5 INTERNET POLY REV.(2016),;Edoardo Celeste, Terms of Service and Bills of Rights: New Mechanisms of Constitutionalisation in the Social Media Environment?, 33 INTL REV. L., Computers & Tech. 122 (2018).

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