The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State

Abstract

This essay develops and refines our theory of constitutional change and constitutional revolutions, and applies it to the constitutional events of the last five years. We argue that constitutional change and constitutional revolutions occur through a process called partisan entrenchment, in which Presidents appoint judges and Justices to the federal judiciary who are thought to share the broad political agenda of the political party led by the President. When presidents are able to appoint enough such judges and Justices, constitutional doctrines start to change. The pace of change is faster if many appointments are made in a comparatively brief period of time.

Courts' development of constitutional doctrine occurs within the broader framework of changes in constitutional regimes, which include changes in institutions, legislation, and administrative regulation. These changes are driven by the forces of democratic politics, and the major actors are the political branches. Although courts may initially resist these changes, in the long run they cooperate with them, define their contours, and legitimate them.

The second half of this essay describes an emerging regime of institutions and practices that we call the 'National Surveillance State'. The National Surveillance State features increased government investments in technology and expanded government bureaucracies devoted to promoting domestic security and gathering intelligence and surveillance using all of the devices that the digital revolution allows. The National Surveillance State responds to the particular needs of warfare, foreign policy, and domestic law enforcement in the twenty-first century.

Courts will set the constitutional contours and limits of the National Surveillance State, but Congress and military and civilian bureaucracies within the Executive branch will actually develop most of its governing apparatus. Although the Republican Party has had the first crack at shaping the institutions and practices of the National Security State, both parties will eventually play a role, they will simply advocate somewhat different versions. How the National Surveillance State develops will depend on the contingencies of politics and the results of future elections, which, of course, will produce new judicial appointments. The courts will bless and legitimate these developments, much as they legitimated the rise of the administrative and regulatory state and the National Security State in the middle of the twentieth century.

Keywords: constitutional change, surveillance, emergency powers, regime change, constitutional interpretation

JEL Classification: K10