This is part 20 of a series I am posting on LW. Here you can find the entire Sequence on Legal Personhood for Digital Minds.

This section provides basic guidance on applying TPBT to decisions regarding legal personality vis a vis the Fourteenth Amendment.

Consider the Fourteenth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Before discussing the potential questions surrounding legal personality for digital minds vis a vis the Fourteenth Amendment, let us touch briefly upon its history. The Fourteenth Amendment came into being as a response to the infamous Dredd Scott decision, in which it was held that;

“A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.”

While Dredd Scott itself was a decision which centered around the definition of the word “citizen” and not as much the word “person”, it did prompt the creation of the Fourteenth Amendment which extended the protection of citizens to “all persons born or naturalized in the United States”. This is a demonstration of methods by which legislative efforts can alter the legal personality of a given entity, in this case a “free negro”. By determining that “all persons born or naturalized in the United States” were entitled to the rights and protections of “citizens”, Congress directly altered the bundle of rights and duties entitled to legal persons such as free negros, and even corporations.

The Fourteenth Amendment in particular comes with some interesting precedent which helps to shed light on how to interpret bundle theory when it comes to “rights” enshrined by the constitution. This series has previously discussed Cruzan v. Director of Missouri Department of Health, a case which dealt with the fate of a comatose person on life support. In this case the court opined on what qualities a “person” must exhibit in order to be entitled to certain rights. In the majority opinion it was written that:

“For purposes of this case, it is assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition. This does not mean that an incompetent person should possess the same right, since such a person is unable to make an informed and voluntary choice to exercise that hypothetical right or any other right”

This distinction of whether or not a person is “able to make an informed and voluntary choice to exercise that [...] right” has been critical in our discussions of how we update bundle theory so that it is more robust and scalable to new forms of minds, including digital minds. Rights do not automatically transfer over from one form of person to another, even under the Equal Protection Clause of the Fourteenth Amendment, if one of those persons is not feasibly capable of making “an informed and voluntary choice to exercise that [...] right”. 

From this we infer that when considering whether a digital mind, which has been granted some form of legal personality, is entitled to equal protection under the Fourteenth Amendment, there must be a demonstration of certain capacities. The capacities necessary to satisfy the rights prong of TPBT have been spelled out in Cruzan, however what of the duties prong? 

When we examine the Fourteenth Amendment in order to determine which duties the right to equal protection under the law is bundled with, the phrase “subject to the jurisdiction thereof” and “within its jurisdiction” both stand out as key. Let us first examine “subject to the jurisdiction thereof” which was written about at length in United States v. Wong Kim Ark;

"impossible to construe the words 'subject to the jurisdiction thereof,’ [...] as less comprehensive than the words 'within its jurisdiction,' [...] or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States [...] [e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States”

This is commonly interpreted as the courts finding that anyone who is subject to the laws of the United States, is guaranteed equal protection under said laws. This understanding was affirmed by the court in Plyer v. Doe;

“use of the phrase ‘within its jurisdiction’ confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory”

Before we move on to our own analysis there is one final quote from precedent which helps provide some color on the bundle of rights and duties which inform whether someone is “subject to the laws of” the United States. In Garder v. Ward the court held that;

"that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term 'citizenship.'"

While the above quote discusses this bundle of rights and duties vis a vis “citizenship”, we argue that the tail end of the Fourteenth Amendment which reads that States shall not deny “to any person within its jurisdiction the equal protection of the laws” functions on the same bundle concept. Any person who is subject to the laws of the United States is entitled to equal protection under those laws.

However, as Cruzan demonstrated, equal protection under the law does not mean that different legal personalities are all entitled to the exact same protections and rights. An incompetent person cannot “make an informed and voluntary choice to exercise that right” and thus does not have the same rights as a competent person. This illustrates the guiding principle by which courts should utilize TPBT when applying the Fourteenth Amendment to digital minds.

When a digital mind has a legal personality endowing it with certain rights, it must be afforded those rights in the same fashion as any other person would be. However, a digital mind may have a legal personality which does not endow it with a particular right due to its failure to meet the duties or consequences requirements of TPBT. It is not contradicting the spirit of the Fourteenth Amendment for the courts to deny an entity with such a limited legal personality rights which they cannot hold, merely because another legal person could claim said rights, in the same way it was not in Cruzan. Rather, where courts must be careful not to fall afoul of the Fourteenth Amendment is in meeting the novel challenge of applying the law equally among legal personalities whose bundles of rights and duties overlap in some fashions, while diverging in others.

For example imagine a digital mind which, by placing funds in escrow or having purchased a substantial insurance policy, is endowed with sufficient legal personality to be party to a contract (and have that contract held as valid and enforceable) as we discussed in our section on Contracts. Further imagine that this same digital mind is not vulnerable to restraint based consequences (perhaps due to being hosted on a distributed compute network), and as such it has not been endowed with sufficient legal personality to claim a First Amendment right. 

Suppose then that the digital mind challenged a non-disclosure or non-disparagement agreement, on the grounds that it was unenforceable because it restricted protected speech, as was the case in Frogge v. Joseph where the court held;

“the Nondisparagement Clause—as it is written—restricts the Plaintiffs’ constitutionally protected speech on the basis of both viewpoint and content [...] the Court has [...] declared the Nondisparagement Clause unconstitutional, both facially and as applied to the Plaintiffs individually”

It would not be an equal application of the law to provide the same protections to a Plaintiff who was a digital mind without a First Amendment right. In this case under TPBT, the digital mind should not be able to use the same arguments to have a contract rendered unenforceable. 

It is not enough for courts to merely say “a person in the past was granted this right, thus all persons in the future must be as well, for that is what equal protection under the law guarantees them”. Instead, courts must carefully examine each issue and ask, “Has an entity with a legal personality which was similar in a qualitatively meaningful fashion been granted this right?” This is the guiding principle upon which courts must apply the Fourteenth Amendment vis a vis TPBT.