Artificial Intelligence and Constitutional Interpretation

Coan, Andrew and Surden, Harry, Artificial Intelligence and Constitutional Interpretation (November 12, 2024). Arizona Legal Studies Discussion Paper No. 24-30, U of Colorado Law Legal Studies Research Paper No. 24-39, Available at SSRN: https://ssrn.com/abstract=5018779 or http://dx.doi.org/10.2139/ssrn.5018779

This Article examines the potential use of large language models (LLMs) like ChatGPT in constitutional interpretation. LLMs are extremely powerful tools, with significant potential to improve the quality and efficiency of constitutional analysis. But their outputs are highly sensitive to variations in prompts and counterarguments, illustrating the importance of human framing choices. As a result, using LLMs for constitutional interpretation implicates substantially the same theoretical issues that confront human interpreters. Two key implications emerge: First, it is crucial to attend carefully to particular use cases and institutional contexts. Relatedly, judges and lawyers must develop “AI literacy” to use LLMs responsibly. Second, there is no avoiding the burdens of judgment. For any given task, LLMs may be better or worse than humans, but the choice of whether and how to use them is itself a judgment requiring normative justification.