Balkin and Levinson on the National Surveillance State (Why Don’t I Feel Like I’m In It?)

by Peter Spiro

Jack Balkin and Sandy Levinson have posted this piece on partisan entrenchment of constitutional norms. It’s a little juriscentric for my taste, although the piece is careful to allow for the constitutional consequence of legislative and executive branch actors (OLC in particular). It’s a useful historical description of how the appointments process has, on a hit-and-miss basis, worked a drag on constitutional change.

But the more interesting, and problematic, element of the piece posits the emergence of a National Surveillance State “characterized by a significant increase in government investments in technology and government bureaucracies devoted to promoting domestic security and (as its name implies) gathering intelligence and surveillance using all of the devices that the digital revolution allows.” The NSS poses the danger of war paradigms displacing criminal law paradigms, with the attendant sacrifice of civil liberties, through these new technological levers.

I’m not sure I buy this. This Administration is a terrible one, and there are a lot of people who are suffering in one way or another because of its national security policy. But it’s also clownishly incompetent, to the point that I don’t really think they’re up to the challenge of deploying new technologies in a particularly menacing way. I also think that although technology may shift some power from Congress to the President (though perhaps not – Congress now can get information on its own, for instance, in a way it couldn’t before), it also empowers non-governmental actors in various ways so as to make them more serious competitors for power, for better or worse.

One way to think of it: what was it like to be a voice of dissent during the Red Scare? I imagine it took real guts to take on McCarthy and his ilk, that jobs and friends were at stake. I don’t feel like it takes much courage to speak out against this Administration. Is there someone in the White House who’s keeping dossiers on those who oppose its policies, and might they undertake some sort of dirty-tricks response? Maybe I’m being naive. For a government to be a tyranny, it has to be in charge. I just don’t see that here.

I do agree with Balkin and Levinson that “the next Democratic President will likely sanction significant aspects of what the Bush Administration has done.” That president will almost surely be more competent. But I doubt it’ll be a scarier Administration to live under (quite the contrary). The security-related rights concerns will persist, but I wonder if they will prove overriding in the way suggested here.

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