I. The 10th Amendment Framework
The 10th Amendment to the United States Constitution states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
While often interpreted in the context of state versus federal authority, the explicit inclusion of “or to the people” is critical. It affirms that powers (and by extension, rights) not enumerated are by default vested in individuals.
The right to control one’s voice, likeness, creative output, and biometric identifiers has never been delegated to the federal government, nor prohibited to the states. Therefore, it remains a reserved right of the individual.
II. Identity as a Reserved Right
A person’s voice, image, biometric data, and creative works are:
Unique and unalienable attributes of their identity.
Intangible property in the same way trade secrets, patents, and trademarks are recognized.
Non-transferable by default unless the individual grants informed, affirmative consent.
Because the Constitution neither assigns ownership of these attributes to the state nor to any corporate entity, they remain with the individual. Any unauthorized taking — digital or physical — is a violation of that reserved right.
III. Application to AI Exploitation
AI companies scrape public and private data to train models that can mimic voices, writing styles, and faces with uncanny accuracy. This is not derivative inspiration — it is appropriation of the raw materials of identity.
Under a proper 10th Amendment interpretation, the moment a company uses your likeness or voice without consent, it has:
Usurped a reserved power belonging solely to you.
Committed a constitutional violation in addition to any statutory infringement.
Thus, individuals don’t need to wait for Congress to “catch up” — they can file suit now, arguing that unauthorized use of identity data violates their constitutionally reserved rights.
IV. Why This Isn’t Happening
Despite the clarity of this reasoning, almost no lawsuits are being filed on 10th Amendment grounds. This is because:
Judicial Evasion: Courts avoid 9th and 10th Amendment cases by framing them as “non-justiciable” or insisting on explicit statutory hooks.
Plaintiff Strategy: Lawyers prefer copyright or contract claims because they are easier to win, even if they fail to set broader precedent.
Corporate Capture: The same companies exploiting identity often shape legislative priorities and legal discourse, discouraging untested constitutional arguments.
Lack of Enforcement Mechanism: No federal or state agency has a mandate to proactively defend individuals’ 10th Amendment rights — making them effectively ornamental.
V. The Structural Failure of the Constitution
The fact that individuals already have the right to control their own identity under the 10th Amendment — yet cannot effectively enforce it — is damning. It proves:
Rights without enforcement are meaningless.
The Constitution provides no direct mechanism for individuals to compel state or federal agencies to defend their reserved rights.
In practice, rights can be nullified by judicial disinterest and corporate lobbying, without formal repeal.
VI. The Path Forward
Legal Strategy:
File identity-theft-by-AI suits explicitly on 10th Amendment grounds, forcing courts to address the reserved rights clause directly.
Pair constitutional claims with statutory causes (publicity rights, unfair competition) to avoid dismissal on procedural grounds.
Political Strategy:
Publicly frame AI exploitation not as a “novel issue” but as a constitutional theft of rights individuals already have.
Use early test cases to push for federal recognition that identity attributes are property by default.
Constitutional Reform:
Recognize that the 10th Amendment should make such cases open-and-shut — but doesn’t, because there’s no dedicated enforcement body.
Propose a Federal Rights Enforcement Office empowered to act whenever an individual’s reserved rights are violated.
Conclusion
We don’t need to wait for “the law to catch up” to AI. The law — in the form of the 10th Amendment — is already there. The problem is that the Constitution leaves its enforcement to institutions that have no incentive to act. Until that structural flaw is addressed, AI companies will continue to operate on a presumption of theft, confident that no one will stop them.
The 10th Amendment proves the point: our Constitution recognizes your ownership of yourself — but won’t lift a finger to protect it.
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