1 Criterion J. on Innovation 1 (2016)

handle is hein.journals/critjinov1 and id is 1 raw text is: 






                               T   H   E


C R I T E R I 0 N
JO     U   RN     A  L     O   N      IN     NO     VATIO            N


VOL.   I                                                        2016



             Robot   Slaves,  Robot   Masters,  and  the
             Agency   Costs  ofArtificial  Government


                          ThomasA.   Smith*

At the close of the eighteenth century, a remarkable experiment occurred in
governmental design. In NorthAmerica, elites framed a revolutionary govern-
ment  that was, as nearly as they could make it, a machine that would go of
itself.' They produced a complex structure: a government of three branches,
legislative, executive, and judicial. Each branch was a kind of government in
itself, semi-sovereign in its own right. The whole system was permeated by
checks and balances, which were partly inspired by the British constitutional
system, at least as it was imagined by the famous Frenchman, the Baron de
Montesquieu. This design was laid on top of the old English common law, not
as it was in England, but as Americans had practiced it for more than a century
and imagined it to have been in olden days, under the 'Ancient Constitution.
The newAmerican  constitution had a fantastic, clockwork aspect to its design.
    What  was the purpose of this complicated government? The founders
assembled it mainly as a safeguard against the weaknesses of human nature.
Madison  tells us the idea was to set ambition against ambition so that, as
much  as possible, no faction or coalition of factions could succeed in domi-
nating government, which would result in tyranny.2 The goal was to design
a mechanism  that would produce policy that reflected as nearly as possible
the national interest without interfering too much with individuals' and
states' rights. With the approval of the thirteen states' ratifying conventions,
the new U.S. Constitution was set spinning like a top. It functioned, after
a fashion, at least until the American Civil War, which marked a massive


  * Professor of Law, University of San Diego. I would like to thank Ted Sichelman for valuable
suggestions, Mike Rappaport for encouragement, and Greg Sidak for his belief in this project. Copyright
2016 byThomas A. Smith. All rights reserved.
  1 See MICHAEL G. KAMMEN,AMACHINETHATWULD Go OF ITSELF: THE CONSTITUTION INAMERICAN
CULTURE (Knopf 1986).
  2 THE FEDERALIST NO.23 (James Madison).


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