Before Privacy, Power: The Structural Constitution and the Challenge of Mass Surveillance

47 Pages Posted: 5 Apr 2017

Date Written: April 5, 2017


The rich legal literature that has grown up to assess the constitutionality of bulk communications collection by the government has focused overwhelmingly on the challenge such programs pose to discrete claims of individual right against the state. Yet beyond the doctrinal and conceptual challenges such claims of privacy and expressive rights have faced – from restrictive views of standing and territoriality to contested understandings of the constitutional harms deserving rights protection – individual rights talk alone ignores the most apparent reality of current bulk collection programs: the newly developed government capacity and desire to collect zettabytes of data represents a vast expansion of government power. Particularly when a large fraction of U.S. government surveillance today is conducted not pursuant to congressional authority but solely under the executive power of Article II of the Constitution, the same changed empirical reality that has led us to revisit many of the decades-old premises on which Fourth Amendment doctrine is based presents an occasion to look anew at the nature of structural constitutional power. As this Article shows, the classic constitutional case for executive power in foreign intelligence surveillance falls short of supporting the claim that Article II alone supports the kind of bulk data collection the executive currently pursues. More, the Constitution’s structural provisions – here meaning the provisions containing affirmative grants of power to the federal government – have also been the source of a method of constitutional interpretation (structural reasoning), and separately, the basis for recognizing a substantive set of purposes underlying the constitutional project, including not only the promotion of functional effectiveness but also the protection of societal liberty. Where rights claims tend to conceptualize the problem of government action in terms of violations of particular clauses or singular individual harms, structural analysis in these respects invites consideration of what kind of government is consistent with the free republican society the Constitution envisions. These considerations, this Article maintains, more usefully inform our understanding of the constitutional harm of bulk collection. While questions of power surrounding bulk collection are hardly straightforward – the President has at least some intelligence authority, and global communications represent an unmatched trove of information that in certain applications has the potential to help protect far more individuals than it harms – this Article demonstrates at a minimum that the Constitution has more to say about this practice than is contained in the Bill of Rights alone.

Keywords: surveillance, privacy, executive power, Article II, government

Suggested Citation

Pearlstein, Deborah N., Before Privacy, Power: The Structural Constitution and the Challenge of Mass Surveillance (April 5, 2017). Cardozo Legal Studies Research Paper No. 516. Available at SSRN: or

Deborah N. Pearlstein (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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