The National Surveillance State: A Response to Balkin

6 Pages Posted: 13 Feb 2009 Last revised: 13 Mar 2018

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law


In his recent Lockhart lecture, published in this journal as "The Constitution in the National Surveillance State," Jack Balkin warns of a "new form of governance" that he calls "The National Surveillance State." This brief response article argues that the changes Balkin details should be understood as a technology problem instead of a governance problem. We are witnessing a broad societal shift away from human observation and towards computerization. The widespread use of computers and the introduction of digital information have caused dramatic changes in how individuals can learn what others are doing. The government's goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged. Understanding the changes as a technology problem rather than a governance problem also suggests solutions that draw support from a wide political base rather than a narrow one.

Keywords: surveillance, Fourth Amendment

JEL Classification: K1

Suggested Citation

Kerr, Orin S., The National Surveillance State: A Response to Balkin. 93 Minnesota Law Review 2179 (2009)., Available at SSRN:

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Berkeley, CA 94720-7200
United States

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