The emergence of blockchain constitutionalism

This chapter presents the first analysis of the concept of ‘blockchain constitutionalism’ using the framework of digital constitutionalism. Drawing on Suber’s Nomic game, we introduce the paradox of self-amendment found within legal orders. Although such a paradox can be domesticated by traditional legal orders, it cannot be readily accommodated within technological legal orders, such as the rule of code instantiated by blockchain technologies. Instead, building on the perspective of digital societal constitutionalism, the paradoxes and tensions generated by the rule of code are best resolved by the actors that are endogenous to blockchain networks. We provide an overview of the functional purposes of state constitutions, distinguish between formal and material constitutions, and explain the liberal and societal perspectives of digital constitutionalism. Section 3 applies insights from constitutional theory to demonstrate that blockchain-based systems are constitutional orders. We use the example of The DAO attack to highlight the tension between the formal and material constitutions of a blockchain-based system, and how even in such systems the material constitution always exercises pressure on the formal on-chain constitution. In order to ensure the legitimacy of blockchain constitutions, it is important to formalize and codify the off-chain constitution of blockchain-based systems, by means of formal constitutions.