The Constitution in the National Surveillance State

Slate's blog on legal issues.
June 10 2008 8:00 AM

The Constitution in the National Surveillance State

Apropos of Marty's recent FISA post, and following up on a discussion I had with Orin and Deborah a while back, I've written a new essay on the National Surveillance State , based on the Lockhart lecture I gave at the University of Minnesota in October of 2006. The essay 1) describes the National Surveillance State; 2) shows how it is a special case of the Informational State— in which the government increasingly uses surveillance, data collection, collation, and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services ; 3) explains how the National Surveillance State arose organically out of the Administrative and Welfare State and National Security States; and 4) describes some the key constitutional challenges lie ahead.

I don't think there's any doubt that we are moving into both an Informational State and a National Surveillance State. Both major political parties have been participating—and will continue to participate—in its construction. The real question is what kind of state we will have.  The Administrative and Welfare State raised problems not only for the Constitution, but also for the rule of law itself. The same is true for the National Surveillance State, which is already here. Changing methods of government demand new strategies to preserve constitutional values and democratic self-government. That is the challenge we face today.

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.

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