Science, Technology, and the Constitution

September 1987

NTIS order #PB88-142534
Recommended Citation:

U.S. Congress, Office of Technology Assessment, Science, Technology, and the

Constitution–Background Paper, OTA-BP-CIT-43 (Washington, DC: U.S. Government Printing Office, September 1987).

Library of Congress Catalog Card Number 87-619873

For sale by the Superintendent of Documents

U.S. Government Printing Office, Washington, DC 20402-9325

(order form can be found in the back of this report)
Foreword

In honor of the Bicentennial of the United States Constitution, OTA has undertaken a study of Science, Technology, and the Constitution in an Information Age.

The project was requested by the Committee on the Judiciary of the House of

Representatives and its Subcommittee on Courts, Civil Liberties, and the Administration of Justice.

Science and technology have, throughout our history, been major factors in

shaping American society and our way of life. By changing the ways in which

we interact with one another, science and technology often affect the way in which

we define the general welfare, the way in which we view the realm of government,

and the nature of the rights we exercise as American citizens. As we enter our

third century of constitutional history, several areas of technology are undergoing rapid development and promise to have especially profound effects; microelectronics, biology, and chemistry, for example, are transforming the practice

of medicine, criminal justice, newsgathering, and other social activities and institutions.

This background paper summarizes and discusses major themes that are being explored in

special reports

the project on Science, Technology, and the Constitution. Several

on these themes are scheduled for release later this year.

JOHN H.

Director

GIBBONS

,., ///
Science, Technology, and the Constitution

Project Review Panel

William Carey

Advisor to the Carnegie Foundation of

New York

Washington, DC

James Duggan

Director

New Hampshire Appellate Defender

Program

Concord, NH

Judith Lichtenberg

Center for Philosophy and Public Policy

University of Maryland

College Park, MD

Peter Low

Hardy Cross Dillard Professor of Law and

John V. Ray Research Professor of Law

School of Law

University of Virginia

Charlottesville, VA

The Honorable Pauline Newman

United States Circuit Judge

United States Court of Appeals for the

Federal Circuit

Washington, DC

Monroe Price

Benjamin Cardozo Law School

New York, NY

Mark Rothstein

Director of Health Law

University of Houston

Houston, TX

Thomas Smith, Esquire

Assistant Director

Criminal Justice Section

American Bar Association

Washington, DC

Paul Stephen

University of Virginia

School of Law

Charlottesville, VA

Laurence R. Tancredi

Kraft Eidman Professor of Medicine

and the Law

University of Texas Health Sciences

Center

Houston, TX

NOTE: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by the reviewers. The reviewers

do not, however, necessarily approve, disapprove, or endorse this report. OTA assumes full responsibility for the report

and the accuracy of its contents.

iv
Science, Technology, and the Constitution

Project Staff

John Andelin, Assistant Director, OTA

Science, Information, and Natural Resources Division

Fred W. Weingarten, Program Manager

Communication and Information Technologies Program

Program Staff

Vary T. Coates, Project Director

Benjamin C. Amick III, Analyst

Robert Kost, Analyst

Mary Ann Madison, Research

Administrative Staff

Liz Emanuel Sandra Serbinoff

Analyst

Becky Battle
Contents

Page

The Centrality of Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Principles of Constitutional Governance . . . . . . . . . . . . . . . . . . . . . . . . . 4

National Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A Democratic Republic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Bill of Rights and Civil War Amendments . . . . . . . . . . . . . . . . . . . . . . 10

The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Freedom of the Electronic Press . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Fifth, Sixth, and Eighth Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 14

Other Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Use Process of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

The Penumbra of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

vi
SCIENCE, TECHNOLOGY, AND THE CONSTITUTION

The centrality of science and technology to

American society argues that Congress and

the courts will repeatedly be asked to reexamine constitutional principles in the context of

new scientific knowledge and new technical

capabilities. This paper seeks to stimulate continuing public discussion of the relationships

between science, technology, and basic constitutional provisions.

The United States Constitution is entering

its third century as our Nation’s basic political and legal framework. It has guided our development as a democratic, free society for ZOO

years during which both the economy and science have flourished. It has not only proven

resilient to dramatic changes accompanying

the industrial revolution and the development

of modern telecommunications and transportation systems; it has also created a structure

in which the scientific and technological ingenuity of the American people continues to

flourish.

The pace of scientific and technological progress is relentless, offering us powers not

dreamed of in 1787. Day by day, scientific research reveals more of the universe beyond the

earth, the universe within the atom, and that

further universe of possibilities within the human gene and the human brain. Technology

gives us the tools to explore these frontiers,

allowing us to modify not just our environment, as man has always done, but the human

body, behavior, brain and the whole of our

genetic heritage on a scale that is unprecedented. We can manipulate chemical factors

in human behavior, measure human abilities,

and predict human performance with increasing power and precision. With chemical and

biological tests, we can both detect past behaviors and assess future risks to specific

people from disease, pollutants, or their own

genetic inheritance.

The social sciences also are improving our

ability to monitor, predict, and modify human

behavior and attitudes. We use the techniques

of statistical analysis, modeling, simulation,

and expert systems to decide who goes to

prison and who is released, who exercises

parental rights, who gets into college or a prestigious profession, and who gets a new heart.

We can intervene at the boundaries of life

and death. Indeed, because of medical technology we have been forced to reconsider the definition of both. Advances in these technologies

are insistently raising questions about the

right to die; the sometimes conflicting rights

of mothers and unborn children; and the right

to impose the consequences of those decisions

on parents, families, friends, and society at

large.

Power, scale, precision, invasiveness, pervasiveness, persistence, and imperfection—

these are inescapable characteristics of late

20th century technology. Nearly all facets of

our life, including our work, play, homes, and

health, are strongly affected by technology.

Our economic strength and our national security depend on our continuing to be among the

leaders in science and technology.

How will these world-shaking advances in

human knowledge and capability change the

context in which the Constitution’s enduring

principles of democratic governance and individual liberty operate? Can we look to the

world of 2087 with confidence that the Constitution will meet the challenges of its third

century and will continue to be a strong bulwark against abuse of both political and technological power? These are the questions examined in a series of OTA reports on science,

technology, and the Constitution. These reports begin with the observation that we are

moving into an era in which information, in

all of its varied forms, has become the agent

of vast social and scientific change.

1
THE CENTRALITY OF INFORMATION

Is technology changing what can be

said to be a “reasonable expectation

of privacy?”

A central theme in all areas of science and

technology is radical improvement in our ability to gather, store, combine, and use information—especially information about people. This

improvement is the result of continuing progress in such diverse fields of inquiry as computer science, molecular biology, chemistry,

and cognitive psychology. In some cases, this

new ability to gather and use information

raises troubling questions about the scope and

protection of that sphere of personal autonomy

and privacy that the Founding Fathers could

assume was beyond the effective reach of the

state.

Electronic surveillance, for instance, is dramatically shrinking the locations and activities in which one has a recognized expectation

of privacy. Techniques that derive information

from an individual’s body fluids, body structure, mental habits, voice timbre, eye motions,

temperature change, and scores of other noncontrollable attributes generate knowledge

about past behavior, allow monitoring and

measurement of present activities, and may

make possible predictions about future performance. We can electronically monitor criminals, or persons awaiting trial, in their homes.

We can call up information about one person

from a multitude of government or commercial databases, compare and integrate it and,

in effect, reveal new information about that

person without their knowledge.

There are bright promises and troubling uncertainties about established, emerging, or potential technical capabilities. But difficult

questions may also be raised by the information or power that science cannot yet provide.

For example, science can reveal and measure

some threats that it cannot remove. It can tell

us who has been exposed to the deadly HIV

virus that causes AIDS, but not as yet how

to remove the infection or cure the disease.

Such questions as whom to test and how to

use the results of testing create real tensions

between the constitutional imperatives of individual rights and the general welfare.

Science can also reveal the presence of environmental toxins at ever lower levels, but

cannot tell us whether the risks outweigh the

benefits of which they are a byproduct. That

judgment involves values and choices about

which science has little useful to say. Here too

the question of how to translate available scientific information into public policy involves

important tensions to which the Constitution

speaks.

Is “blacklisting” by means of computerized government information

systems constitutional?

While information has immense benefits and

capabilities to improve our lives both individually and as a Nation, it also has dangers. Information about a person is potentially a

means of influencing and controlling that person. Information challenges traditional sources

of authority and institutions built on that authority. Experience, training, and education

may be rendered useless by new information.

Information can also erode responsibility: what

was once considered a sin to be condemned or

a crime to be punished may, with fuller knowledge, appear to some as an illness to be treated

or a genetic defect to be repaired. This perception can lead to imposingly difficult questions

about the limits on social engineering in the

context of constitutional values of personal

freedom and privacy.

It is for these reasons that information, and

the electronic, chemical, biological, and social

technologies that generate and give access to

it, often affect constitutional relationships that

2
3

we are accustomed to think of as political, eco- rectly or indirectly, information often genernomic, or legal in nature. Constitutional rela- ates that power, informs its limitations, or aftionships deal with power, with limitations on fects their proper balance.

power, and with the balance between them. Di-
THE PRINCIPLES OF CONSTITUTIONAL GOVERNANCE

The seven Articles of the Constitution rest

on a few fundamental principles of governance

that were created and tested through centuries of struggle in the countries of Europe and

in the American colonies. As articulated in the

Constitution, these principles have proven robust enough to provide for order and social stability, yet capable of considerable flexibility

and responsiveness in a changing society. The

fundamental principles of constitutional governance include the concepts of national sovereignty, limited government, democratic representation, federalism with reserved State

powers, and separation of powers within the

three branches of the national government.

Each of these principles is affected by modern technology. National sovereignty is fundamentally challenged by the effects of extensive

international transactions and transborder

data flows, and by the necessity of multinational cooperation to cope with environmental

problems related to technology. The structure

of the relationships between elected representatives and their constituents, the various interest groups, and the other branches of government has been substantively changed by

the use of communications and information

technologies. Federalism continues to change

as effects of technologies continually override

jurisdictional boundaries. Cooperation in using

databases and communications systems could

erode some of the checks and balances protecting separation of powers.

National Sovereignty

Sovereignty may be defined as the exclusive

and supreme control by a government over its

territory and inhabitants. Under the Constitution, sovereignty in the United States is

shared between the State and Federal Governments. The powers of the Federal Government

are primarily those “necessary and proper’ to

carry out the functions listed in Article I, section 8. Under the 10th Amendment, the remainder of the power that can be exercised by

government is reserved to the States.

Do powerful translational businesses,

using global networks, make the concept of “national sovereignty” obsolete?

Since the mid-1800s, the scale of technology

and the scope of its impacts have changed

American life; first in transportation systems

(e.g., the railroad), then in manufacturing and

production (the steel industry, the automobile

industry), and in communications systems (telegraph and telephone lines, radio, television).

A concomitant broadening of the role of Federal Government and diminution of the autonomy of State governments in controlling technology has occurred in each instance. Federal

power was used first to build and regulate

national transportation and communications

systems, then to protect health, safety, and

employee welfare as manufacturing and commerce have matured. Federal power has been

used to recover economic stability during the

economic crisis of the 1930s, to set up a complex social security system, to deal with global

wars, to put men on the moon.

Just as the development of a national transportation and communications infrastructure

in past centuries expanded the Federal Government role in local and State affairs, technology is today expanding the theater of

commerce and politics to global dimensions.

In the process, it is diminishing the degree to

which any nation, including the United States,

may act as an autonomous sovereign.

Today, large-scale enterprises and the consequences of industrialization continue to force

issues from the local to the national to the

international level. Global communications

networks are contracting the Federal Government’s power by interlocking national economies, facilitating transnational business, and

increasing the necessity of political and economic cooperation among nations. The world4
5

wide nature of today’s technology-oriented

problems, such as pollution of air and water,

depletion of natural resources, global drug traffic, and intercontinental weaponry, all combine

to force cooperative actions in the international

arena and surrender of some national sovereignty.

The evolution of the translational corporation over the last 20 years illustrates the shift

of power away from sovereign nations that accompanies global technology. Transnational

enterprise is subtly but significantly different

from the post-World War II multinational corporation that was or is still essentially based

in and identified with one country —i.e., an

“American multinational. ” New transportation and communications technologies, including high-speed air travel, bulk shipping facilities, flexible manufacturing and automation,

distributed data processing and communications capabilities, and high-speed transmission

of information, have allowed transnational corporations to shift operations between countries, depending on contingencies such as labor costs, availability of resources, and the

political and economic climate of their host nation. These developments have increased the

power of the transnational corporation, as

economies of scale have allowed the internationalization and vertical integration of their

markets.

Deregulation of the international monetary

system, rapid movement of investment funds

around the world, the trading of stock on foreign exchanges, and international corporate

ownership and mergers make transnational

businesses even more independent of national

policies. In addition, the exchange of television

shows, movies, fashions, music, and other

forms of entertainment tends to homogenize

cultures and consumer demand throughout the

world, and could erode national loyalties and

dependencies.

These developments parallel the rise of national corporations during the 19th and early

20th centuries, which brought about the expansion of Federal power and the resulting

shift from the private power of corporations

to the public power of the Federal Government.

The internationalization of economic power

may now be causing at least a temporary shift

back from public power to private power at the

international level.

The United States has responded to the development of translational corporate power

by trying to extend the exercise of sovereignty

outside of its own borders, by, for example, controlling or regulating foreign subsidiaries of

U.S. corporations. But, as nationality of corporations has faded, these efforts have proved

ineffective. Companies move. The nationalities

or loyalties of their top management are not

necessarily coincident with where they are

headquartered. Some corporations become essentially independent of geographic sites, production facilities, and national charters.

However, in spite of this erosion of sovereignty, national boundaries remain very real

economical and political limitations. Private

corporations may be caught in intolerable

binds between conflicting laws and policies in

the different countries in which they do business. The control of databanks and flow of

information by, for example, the Council of

Europe, can impact adversely on American

companies doing business in Europe.

The picture of national sovereignty that

emerges in 1987 is thus very different from the

picture that was accepted in 1787. The challenges to national sovereignty in the future will

be very different from those that were possible in the past, and will be shaped by the need

for international response to continuing technological development.

A Democratic Republic

The United States was not the first nation

in history to try constitutional government,

but it set the pattern for those that followed.

It was the first successfully to establish a stable union of what were then sovereign States.

The Founders, men of their times, did not envision universal suffrage or equal opportunist y

for all, yet they gave us the means to move

in that direction. As James Madison said, when

proposing on June 8, 1789, that the first Congress adopt a Bill of Rights:
6

. . . the people have an indubitable, unalienable, and indefeasible right to reform or change

their Government, whenever it be found adverse or inadequate to the purposes of its institution.

“A more perfect union” was needed in 1787

because of the economic chaos caused by the

constant competition between the 13 original

States, because of the threat of alliances between States and foreign countries eager to

regain control in the New World, and because

of the inability of the existing Confederation

to finance itself or to control the actions of individual States. A strong union was needed

to provide the stability and cooperation necessary for the economic and technological development of the vast resources of the new

country. At the same time, the Founders

greatly feared a strong national government

that might abuse its power. Constitutional history since that day in many ways reflects the

effort to maintain a balance between these conflicting goals.

The principle of representation, whereby one

individual gave voice to the interests of his constituency, was already well established in 1787,

both in England and on this continent. Since

then, the United States has steadily broadened

the franchise to all adults and enabled people

to make more direct choices, by eliminating

the indirect election of Senators, creating

primaries to select Presidential candidates, enforcing a principle of equal weight for each person’s ballot, and putting decision propositions

on State and local ballots. These changes have

helped to compensate for the unavoidable dilution of representation as population grew and

the number of States increased.

Modern technology has however introduced

complexities that have a serious impact on the

representative process. The effect of technology on government structure has been most

noticeable in the development of a massive

Federal bureaucracy to provide the expertise

for applying, using, and regulating technologies. The constitutional problems of such a

structure have been alleviated in part by the

application by the Supreme Court of the due

process clause to administrative procedures.

Are information systems changing

the nature of congressional representation?

But the growth of a “non-elected branch” of

government has inevitably distanced the people from the day-to-day operations of government. The use of independent agencies—the

Federal Communications Commission, the Interstate Commerce Commission, the Nuclear

Regulatory Commission—to regulate technologies has also placed a serious strain on the

boundary between legislative and executive

functions. This further dilutes the representation process by diffusing responsibility

within the government itself.

But effects of technology on representation

are not limited to fostering the growth of a Federal bureaucracy. Technology also has direct

effects on the very functions of representation,

such as communicating with constituents, formulating policy, legislating, and overseeing executive agencies. The use of computerized mail

systems, for example, has allowed the collection and analysis of data on constituent demographics and interests, and thus the segmentation and targeting of audiences to give political

messages greater impact and saliency. The information available in computerized databases

allows newly arrived Members to be more immediately knowledgeable and effective. Oversight of executive agencies can potentially be

greatly enhanced by the use of electronic information and computer models to analyze

budgets and evaluate programs, but it also becomes more difficult to evaluate highly technical management decisions about costly information systems operating at the edge of

technological advance.

The mass media-newspaper, television, and

radio—is a potent influence on the nature of

representative democracy. The use of media

to present a political image or personally to

articulate and frame an issue has been expanded by C-Span and by the use of videotape

by local stations, but has also been shaped by
7

the demands of the TV news format. The

reporting of political news affects attitudes of

the public and may distort the process of determining winners and setting agendas. Computerized analyses of voting trends in selected

districts aid networks in predicting winners

and losers long before the voting is finished,

playing on the psychological tendencies of

some people to jump on the bandwagon.

Television has also led to what might be

called the industry of “image-making,” in

which more attention is paid to projecting a

carefully designed political image than to explaining controversial policy positions. Critics

charge that tracking and surveying public

opinion has changed the focus of political news

away from the substance of issues and reasoned analysis, and towards attention-grabbing headlines. The ability to inform and influence Congress may also have shifted from

party loyalists with cross-cutting interests and

motivations, towards organized interest groups

—especially those that have the technological

resources to mobilize public opinion in their

favor—and towards “single-issue politics” under which organized groups of voters are able

to exercise an influence greater than their number would suggest.

Does the proliferation of communications be

tween elected representatives and their constituents enhance democracy? The Founding

Fathers debated whether elected representatives were to reach decisions based on instructions from the public or were, by deliberation

and debate, to arrive at some higher common

good. The question of whether a representative should be ‘instructed’ by the sentiments

of constituents, or whether he or she should

lead popular opinion in a deliberative role continued in the First Congress, where Mr. Clymer,

a member of the House of Representatives,

said,

If they have a constitutional right to instruct us, it infers that we are bound by those

instructions. . . .This is a most dangerous principle, utterly destructive of all ideas of an independent and deliberative body.

Two hundred years later, this question continues to be debated. The use of telecommunications, either to survey public opinion or to

Would “electronic direct democracy”

—public voting on issues by electronic

systems —fit the constitutional concept of representative democracy?

send messages or protests to Congress, increases the likelihood of instructed representation. But the complexity of administering

a technologically advanced society, the growth

of population, the rise of bureaucracy, and the

difficulty of maintaining public interest in political issues far removed from one’s everyday

life, tend to counter this trend toward instructed representation. They distance elected

officials from the people, thereby allowing

greater room for deliberation and independent

judgment.

Technology may in the very near future

present the Congress with a dramatic choice

between these two theories of representation.

New technologies, such as interactive TV and

videotex, raise the possibility of direct voting

by citizens on some national policy issues.

Whether these methods should be used merely

to collect in-depth opinions or to register actual binding votes is highly debatable.

Advocates of direct electronic democracy

claim that people would take more interest in

government and become better educated on

the issues, and that democracy would be the

better for it. Where limited trials have been

made, people do show increased interest in policy issues. But these issues have been local,

and relatively simple ones. There has never

been a national referendum, though one was

proposed in 1907.

Those against the idea of direct voting on

issues cite the assumed disinterest and inability of the average citizen to understand the

complex subjects involved. This in turn could

make the voice of educated, socioeconomic

elites stronger. Alternatively, it could make

for uninformed resolution of important matters of policy.

But technology may allow a move to direct

democracy in incremental steps, rather than
8

all at once. Other methods of electronic participation, including electronic town meetings,

public teleconferencing, and public access to

legislative databases are being used in some

State and local governments. This kind of access to government could increase greatly in

the future as information technologies become

more usable and more accessible to more

people.

The impact of technology on the principle

of representative government thus can cut

both ways. The increased complexity of government, in the 21st century and beyond, leads

to governmental structures that can dilute its

representative character. Yet technology offers

compensating advantages that can increase

the ability of government to serve the people

it represents.

Federalism

Federalism in the United States is marked

by:

●

●

●

●

●

●

●

a union of autonomous political entities

for common purposes;

divided powers, with the Federal Government having enumerated powers and the

States retaining residual power;

operation of each of these governments

within its assigned sphere upon all persons and property within its territorial

limits;

law enforcement powers for each level of

government;

supremacy for the national government

within its assigned sphere in any conflict

with state power;

a dual system of State and Federal courts;

and

dual citizenship, national and state.

Since the Civil War, Federal power has

clearly been in the ascendancy, and the same

trends that are now challenging national

sovereignty-expanding markets and centers

of production, telecommunications networks,

a mobile citizenry, and the homogenization of

culture across boundaries-have contributed

to the shrinkage in the role and authority of

State governments.

Transportation and communications systems, tying this nation together physically,

also tied the country together economically and

politically, requiring an interdependence and

cooperation that could only come from national

action. Autonomous States could not coordinate the commercial development of navigable waterways, interstate roads, railways, and

airports. The lack of uniformity in laws and

the competition among State interests has led

to Federal Government preemption of many

areas of commerce, and precluded State control of nationwide systems necessary to ensure

orderly and efficient economic development.

Today, as a practical matter, the government

of commerce is national and not local.

Current technological problems, such as nuclear and toxic waste disposal, water rights in

the semi-arid areas of the West, and air pollution spreading from one region to another, need

cooperation between the States and leadership,

refereeing, and adjudication by the Federal

Government.

This does not mean that federalism is thwarted

or that there is no major role for St ate government. The criminal justice system, particularly

as it relates to violent crime, remains within

State control. Property ownership, the law of

descent and distribution, and family relations

are largely the province of State or local law.

Fundamental government services—fire, police, water, zoning–by and large are provided

by State or local government. Technological

change will however influence how the States

will govern in these respects and how the Constitution will guide that governing.

Moreover, new information and telecommunications technologies may again operate to

change the balance within federalism by enhancing the ability of States to act independently or cooperatively, reducing the need for

national solutions to problems. Information

systems, for example, have allowed States to

cooperate much more effectively in the areas

of civil and criminal justice and public health.

Future technologies will, as they have in the

past, most likely cut both ways; concentrating some powers in the Federal Government

and enabling the States to retain and expand
9 —

Has technology undermined the province of the legislature to “make and

declare war?”

others. While the use of information systems

and computerized databases provides additional power to the States, additional Federal

regulation may be required to protect individuals’ privacy rights in an era of nearly unlimited surveillance ability and ability to combine information. This tension, too, presents

challenges to constitutional interpretation.

Separation of Powers

In framing a government. . . you must first

enable the government to control the governed

and in the next place, oblige it to control itself.

–Federalist, No. 51

The hard-won power of the English Parliament to control the excesses of the Throne was

for the Founding Fathers a valuable heritage.

As structured by the Constitution, political

power and function in the Federal Government

is separated among three distinct and mutually dependent branches—the legislature, the

executive branch, and the courts. Moreover,

a set of institutional and procedural checks was

created to make it difficult for one branch to

act rashly or independently of the other two

branches.

The power balance in the U.S. Government

has shifted many times, sometimes by a President’s initiative, at other times by Congress’

reassertion of its powers or duties, at yet other

In an emergency, need Congress assemble in Washington to act, or could

it use telecommunications?

times by the intervention of the courts. War

and technological change have been two dramatic factors in changing the locus of power

between the President and Congress. Both

have tended to pose threats to public safety

that required swift, decisive action based on

expert knowledge, and thus to shift responsibility toward the Executive rather than the

more deliberative Legislative Branch of Government. War has been the greatest promoter

of presidential power, but until World War II,

this was usually temporary. More recently, the

power, the range, and the speed of modern

weapons have favored a continued shift in

power toward the Presidency.

As technological advances give rise to constitutional challenges, moreover, the powers

exerted by the Supreme Court are likely to increase. Never before in our history have so

many aspects of daily life been subject to litigation, both over the respective powers of the

President and Congress and over the relationship of government to the individual. It is a

unique feature of American democracy to rely

so extensively on courts to monitor the authority of elected branches of government. Exercise of this power will likely ebb and flow as

it has in the past, but it is nonetheless certain

that technological change will place new and

continuing demands on the courts to interpret

the fundamental charter of American government.
THE BILL OF RIGHTS AND CIVIL WAR AMENDMENTS

The first ten amendments to the Constitution spell out those inalienable rights for which

the 13 colonies, in 1776, had defied England;

and for the greater security of which, 11 years

later, they gave up some of the powers of nationstatehood to create a more perfect union. Many

of these rights were already deeply rooted in

English common law and in the aspirations and

struggles of the peoples of many countries who

came to the New World. Although these rights

have been interpreted as limitations only

against the exercise of power by the Federal

Government, the three amendments added after the Civil War-the 13th, 14th, and 15th–

mean that most of them limit the powers of

State governments as well. These 13 amendments together are the great American charter of individual liberty against potential oppression by government.

The Bill of Rights embodies the most fundamental political, intellectual, and religious

rights in the 45 words of the First Amendment.

It also forbids arbitrary and lawless governmental actions that threaten life, liberty, or

individual property, and has been interpreted

to recognize a zone of privacy on which government has no right to intrude. The rights

of those suspected of or convicted of crime are

spelled out and the criteria for citizenship and

enjoyment of these rights and protections are

set forth.

The Bill of Rights and Civil War amendments

have proven triumphantly robust through the

confounding technological, social, economic,

and political changes of the past two centuries. They are deeply involved in issues arising from technological change as it affects relationships between people and government.

The First Amendment

Freedom of speech and press, the right to

assembly, and the right to petition the government for redress of grievances are embodied in the First Amendment:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

The provisions of the First Amendment have

been interpreted to provide a bulwark against

government intervention in the most basic elements of our democracy—the expression of

thought, opinion, and belief. As necessary conditions to democratic governance, the rights

embodied in the First Amendment occupy a

“preferred position “ in the hierarchy of constitutional rights. As Justice Rutledge, speaking for the majority of the Supreme Court, said

in 1945:

This case confronts us with the duty . . . to

say where the individual’s freedom ends and

the State’s power begins. Choice on that border, now as always delicate, is perhaps more

so where the usual presumption supporting

legislation is balanced by the preferred place

given in our scheme to the great, the indispensable democratic freedoms secured by the First

Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting

dubious intrusions . . .

Thomas v. Collins, 1945

In spite of this preferred position, the Supreme Court has never interpreted the freedoms of religion, speech, press, or assembly

to be without limits. Government can prohibit

speech that threatens national security, that

is obscene, or that is an incitement to violence

or to the overthrow of the government. It can

place reasonable restrictions on the time, place,

and manner of speech, and can regulate speech

that takes place over the airwaves. This often

involves a balancing of individual rights

against the interest of government, in the context of contemporary economic, political, ethical, legal, and scientific or technological values.

Science acts as arbiter of what can be done

to change and exploit the physical world. It

thereby renders speech more potent, and

moves back the threshold at which the government can claim a compelling reason for

limiting freedom of expression. When the connection between science and technology is di10
11

Do national security restrictions and Does a scientist have a constitutional

export controls effectively negate the right to do research on any subject?

First Amendment protection for sci- Or are there topics that should be “forentific communication? bidden knowledge?”

rect enough to pose a risk to national security

or economic stability, the government may and

does restrain scientific communications.

It may do so either by making research funding conditional on secrecy, by prohibiting

speech or publication on specific scientific

topics, by withholding patents, or by controlling exports of either products or production

know-how. The question to be considered now

and for the future is when those modes of restraint, taken together, place an intolerable

burden on the exercise of First Amendment

freedoms.

Knowledge can be misused, and technology

can be abused, by being turned to ends that

threaten life or defy cherished values. The question arises, therefore, whether there are areas

of scientific and technological research that

should not be undertaken. Should the pursuit

of certain kinds of knowledge be forbidden?

The question has been raised at various times

about research on atomic energy, recombinant

DNA, neuroscience, eugenics, birth control,

and fetal tissue. Some thoughtful people, laymen and scientists alike, argue that science and

technology are not neutral; that, once unleashed, they may have pernicious effects.

They believe that some kinds of knowledge,

or some methods of experimentation are ethically unacceptable and ought therefore to be

curbed.

Other equally thoughtful people argue that

all knowledge is valuable and necessary to the

continued progress of civilization. Advocates

of this view argue that the First Amendment

guarantees of free speech and press, and its

prohibition against government establishment

of religion reflected the Founding Fathers’

confidence, born of Enlightenment accounts

of Galileo and Newton, that science is a beneficent force, not to be interfered with by government or by religious institutions.

Yet there have been few judicial decisions

that address directly the implications of the

First Amendment for the constitutional status of scientific research, and there are no court

decisions that establish definitively a First

Amendment right to conduct research on any

topic, without limitation or restriction. The prevailing assumption is that scientific activity

has general protection, subject to limitation

where a clear national interest is involved.

Even where prohibitions on research are not

involved, however, science and technology may

eventually raise constitutional issues. The Federal Government is often the only source of

adequate funding for scientific research in

which industry has no interest. There is no constitutional right to Government research funding. But objections to some areas of research,

such as those involved in interspecies genetic

exchange and perhaps someday human cloning, are sometimes rooted in values that are

intrinsically religious in nature yet not universally shared. Government restrictions on funding particular research projects in these sensitive areas may in the future be challenged

as suspect under the establishment clause of

the First Amendment, or the equal protection

clause of the Fourteenth Amendment.

Freedom of the Electronic Press

As it first did with the printing press and

again with radio and television, new technology will give rise to new ways of communicating, which amplify the ways in which individuals and organizations express themselves.

Information and communications technologies, such as satellites, computers, and digi-
12

Does “freedom of the press” apply to

electronic bulletin boards or to media

satellites?

tal transmission lines, are, like the telegraph,

telephone, radio, and television before them,

changing the range, cost, and quality of communications.

Taken together, advances in computers and

telecommunications may change the concept

of “the press. Today, the term usually refers

to a formal organization that gathers and publishes or broadcasts news. Such communications generally take the form of one-to-many

exchange. In the future, that exchange may

shift to many-to-many communications in

which people with common interests share information amongst themselves, as with electronic bulletin boards.

With these changes will come the prospect

of new First Amendment challenges to the

power of government to regulate access to and

ownership of communications media. New

technologies, such as electronic publishing,

may not fit easily into old models of regulation, and distinctions between the First

Amendment rights of print publishers, television or radio broadcasters, and common carriers will become increasingly difficult to

justify.

New capabilities for the press to gather,

store, and retrieve information on individuals

may require that rules of Liability for constitutionally protected speech be reexamined. The

potential for technology to decentralize the

editorial function may raise questions of editoial control and liability under the First Amendment. And, in an era of global communications,

the question will be raised of whether First

Amendment rights extends to speech transmitted to this country by foreign speakers.

Has the notion that broadcasting frequencies are scarce, and thus subject

to regulation, been outmoded by technology?

The Fourth Amendment

The Fourth Amendment is a strong affirmation of individual privacy and a barrier to the

exercise of arbitrary power. It says:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched and the persons or things

to be seized.

This right had a long history in English common law. Sometimes colloquially expressed as

“a man’s house is his castle, ” it meant that

one had a right to expect that one’s home, possessions, and person were safe against arbitrary and forceful intrusion by the King’s

agents. At the same time, it recognized that

the lawful agents of the state can intrude on

private property to execute or enforce the law,

so long as they obey certain procedural rules

that protect the subject of the search.

This protection was understood in 1787 to

limit and regulate physical trespass, and the

seizing of papers, effects, or “things.” Technology began to threaten the effectiveness of

this protection about a century ago. The telegraph and telephone allowed information about

oneself to be separated from person, places,

paper, and objects because it could exist in the

form of pulses of electricity. In 1928 (and again

in 1942) the Supreme Court declared that wiretapping was not forbidden by the Fourth

Amendment because there was no physical
13 —.

Does the Fourth Amendment prohibition on “unreasonable searches and

seizures” cover all kinds of electronic

surveillance?

trespass and physical “papers or effects” were

not seized.

Congress grappled with this question in the

debate that led to the Federal Communications

Act of 1934 without finding a solution that

fully satisfied either itself or the courts. Not

until 1967 did the Supreme Court say that the

intent of the Fourth Amendment was to protect people and their privacy, rather than

places or property as such. The Court said that

electronic snooping should be considered a

form of search and seizure governed by rules

and procedures adopted from traditional safeguards but adapted to new technological capabilities.

Now, there are nearly unlimited means of

electronic surveillance, some from great distances (even from satellites) and with almost

no risk of detection by those being watched.

Intelligence agencies and law enforcement

forces can locate, identify, track, and monitor

people or vehicles by using devices that pick

up and analyze images, sound waves, vibrations, heat, or light. Electronic devices can be

fixed to people, their clothing, or their

vehicles—and possibly in the future could be

embedded in their bodies-so that their movements are tracked or recorded. Some local jurisdictions, for example, already use house arrest,

continually monitored by electronic anklets or

bracelets worn by prisoners, as an alternative

to prison.

The rule laid down in 1967, and later

reaffirmed by the Supreme Court, was that one

is protected against surveillance where there

is “a reasonable expectation of privacy. ” With

the remote sensing devices of today or tomorrow, the places or situations in which there is

a reasonable expectation of privacy, in the

sense that being watched or overheard would

Do you have a privacy interest or a

property interest in your blood, urine,

breath, or DNA?

not be feasible or even easy, are drastically

shrinking. The Congress has already taken

steps in the Electronic Communications Privacy Act of 1986, to bring many new electronic

technologies under statutes spelling out the

applications of constitutional principles of protection against unreasonable searches and seizures. Almost surely, the Congress and the

Courts will be asked to consider other new technologies in the future.

At the opposite extreme from remote sensing is what may be called intimate sensing.

Modern technologies use the substance of, or

emanations from, the human body and its cells

and tissues to detect the presence or the identity of a person, track one’s movements, or provide evidence of one’s past behavior. Such technologies can be applied to, for example, the use

of drugs, sexual activities, or exposure to disease. There are new techniques for finding fingerprints, and computer systems that match

them against huge banks of prints on file. Biometric security systems can identify a person by hand geometry, voice patterns, retinal

blood vessel patterns, or other physical characteristics. Analysis of DNA, the genetic material within all living cells, also can be used

in identification. Blood, semen, and other body

fluids can be tested for a variety of factors associated with past experience or present performance.

Until 1967, the courts did not allow the seizure of “mere evidence” (i.e., things that were

not themselves “the fruits or instrumentalities of crime” or contraband). But it is now well

established that blood, semen, fingerprints,

hair, handwriting samples, and other such evidence can be taken. Moreover, such seizures

have been held not to violate the Fourth

Amendment or other constitutional prohibitions against forced self-incrimination, if their

disclosure is otherwise reasonable.
14

If law enforcement officers have effective “non-lethal weapons,” will any

use of deadly force become unconstitutional?

Questions about privacy and the reasonableness of searches will continue to arise. We have

not, for example, fully probed applications of

the Fourth Amendment to computer memory

or to future testing, screening, and analytical

capabilities applied to the human body and

brain.

The Fifth, Sixth, and

Eighth Amendments

The rights of those suspected, accused, or

convicted of crimes are set out in three of the

ten amendments that make up the Bill of

Rights, and elsewhere in the Constitution. This

strong emphasis on the rights of the suspect

or criminal was not because the Founding

Fathers were unconcerned about crime, but

rather because they were well aware that tyrannical Governments can use accusations of common crimes to rid themselves of rebels or dissidents.

The Fifth Amendment guarantees the right

to a grand jury and prohibits double jeopardy,

compelled self-incrimination, and the taking

of life, liberty, or property without due process of law. The Sixth Amendment guarantees

a speedy and public trial by impartial jury of

one’s peers, the right to have and to compel

the testimony of witnesses, and to have the

assistance of counsel in all criminal prosecutions. The Eighth Amendment forbids the imposition of excessive bail and fines, or cruel

and unusual punishments.

All aspects of law enforcement and criminal

justice have been profoundly affected by technology over the last decade, and this technological transformation is continuing. At the

heart of it are computer and telecommunication technologies, computerized databases, and

communications networks. But two other primary areas of science and technology are also

of great importance. The first is forensic science, which is especially important in the detection of crime and in the development of legal evidence of crime and guilt. The second

involves social science methods of statistical

analysis, computer models, simulation, and expert systems. These advances are being used

in prediction of criminal behavior and recidivism, for more effective targeting of enforcement resources, and for support of legal, judicial, and administrative decisionmaking,

including decisions about bail, jury selection,

sentencing, and probation.

The Sixth Amendment guarantees a speedy

and public trial by an impartial jury, and the

right of defendants to have the advice of

trained counsel, to confront and cross-examine

prosecution witnesses, and to compel the testimony of defense witnesses. One of the most

controversial contributions of social science to

criminal justice procedure has been recent attempts at “scientific selection’ of juries. There

have also been experiments with the use of

telecommunications in taking testimony from

witnesses not physically present in the courtroom, such as abused children.

Significant changes are now occurring in the

treatment of convicted felons for reasons having to do with both technological and social

factors. These changes are likely to result in

challenges to conventional understanding of

Eighth Amendment protections against excessive bail or fines, and cruel and unusual punishments. The changes are driven by growing determination to reduce crime, particularly

successive crimes of repeat offenders, and by

the counter pressure of overcrowding in prisons. But social decisions in this area are becoming more complex and difficult because of:

scientific research on criminal behavior

patterns;

the emergence of technological alternatives to imprisonment; and

the growing possibility that biochemical

and genetic research will identify determinants of (or strong forces on) criminal
15

Can a judge give you a choice of

prison, or home arrest wearing an electronic anklet? What if you are required to pay for the use of the anklet?

behavior that are beyond the control of

the offender, and thus challenge assumptions underlying concepts of both punishment and rehabilitation.

The emphasis on reducing crime by effective

law enforcement and punishment (or rehabilitation or, at a minimum, incapacitation) has

led to the greater use of preventive detention.

This, in turn, led to a constitutional challenge,

using the principle of prohibition of excessive

bail, recently resolved by the Supreme Court.

The pressure of overcrowding, which has been

found by some courts to constitute cruel and

unusual punishment, is leading many local

jurisdictions to experiment with alternatives

to prison. These include electronically monitored house arrest, at least for non-violent

offenders who have a home and a job; and for

some other offenders, chemical, psychological,

and behavioral treatments aimed at behavior

modification. Even surgical intervention-e. g.,

castration—has been proposed by one court

as an alternative to prison.

Alternatives to prison maybe challenged as

‘‘cruel and unusual punishment. Courts have

generally interpreted “cruel” to mean the imposition of bodily pain, but have recognized

that this definition may change over time. Or

the alternatives may be challenged as invasions of the rights of prisoners, who are considered to retain some privacy rights. As these

techniques have been used so far, they always

require the consent of the subject and are considered a benefit or privilege for the offender,

who would otherwise go to prison or remain

there longer. Some, however, question the reality of informed consent when the alternative

is imprisonment.

Finally, to the degree that alternatives to

prison are desirable options for the offender,

there are questions about availability on an

equitable basis and hence potential constitutional issues of discrimination. These issues

arise because at least some of the alternatives

to prison, such as electronically monitored

home arrest and privately operated prisons,

require prisoners either to pay the costs of the

program or to have steady employment and

assets, such as a fixed abode with telephone

connections. Thus, those without means are

likely to be ineligible. Challenges based on this

factor could become even more insistent if risks

of incarceration become significantly worse because of the spread of AIDS in prisons.

The use of science to gather, analyze, and

present evidence in criminal proceedings can

raise troublesome questions about the accuracy, reliability, and credibility of the methods used. Questions are also raised about the

ability of jurors, lawyers, and judges to understand fully both the significance and the limitations of such evidence. These questions, in

turn, may raise due process issues. Computer

models and statistical analyses used to support judicial and administrative decisions may

also be challenged on constitutional grounds,

particularly if used in a predictive mode (what

is the probability of this offender committing

another crime if he or she is paroled?). Such

models are necessarily based on information

about characteristics of or past behavior of categories of people, and are then used to predict

or assign probabilities to the behavior of an

individual. Thus they are suspect of discrimination.

Law enforcement agencies are trying to develop technology to reduce the need for deadly

force when subduing or arresting subjects. The

goal is to reduce both the loss of life and the

liabilities or penalties being levied on local

jurisdictions when lives are lost. If nonlethal

weapons become widely available and effective,

then use of lethal weapons in all but the most

compelling circumstances could be challenged

as unconstitutional, because it could be disproportionate to the need or risk.

A fundamental assumption underlying constitutional provisions related to crime and

punishment—and indeed, a basic assumption
16

of western civilization-is that people have free

will or self-determination. They can be

punished for crime or can be offered the opportunity for rehabilitation because they chose

to break the law and can thus choose not to

break the law. With a growing, although still

very early and spotty, knowledge about genetic, biochemical, and environmental influences on behavior, cognitive processes, and personality, the assumption of self-determination

is being, if not eroded, at least reexamined and

qualified. Courts and legislatures are participating in that reexamination.

Other Amendments

Several of the other amendments within the

Bill of Rights have receded in importance over

the last two centuries, perhaps again in part

because of changing technology. The Second

Amendment says that a militia is “necessary

to the security of a free State, ” and guarantees “the right of the people to keep and bear

Arms. ” The Third Amendment strictly limits

the quartering of soldiers in private houses in

time of peace. Neither of these amendments

has been applied very often since 1792, although the Second Amendment is often cited

by those opposing gun control laws. These

amendments were intended to safeguard the

ability of citizens to resist both hostile invasion and tyrannical domestic government, and

to establish the primacy of civilian rights over

a (professional) military force. The growth in

power, scale, destructiveness, and cost of military weapons, and even of law enforcement

weapons, has effectively nullified the objectives of these two amendments.

The right of trial by jury in civil cases is enshrined in the Seventh Amendment, primarily to preserve the common law distinction between the province of the court (which decides

issues of law) and the province of the jury

(which decides questions of fact), a distinction

of great importance in the 18th century, although taken for granted now.

Equal Protection

The Fourteenth Amendment provides that

“No State shall. . . deny to any person within

its jurisdiction the equal protection of the

laws.” Once the last resort of constitutional

argument, this phrase assumed modem importance in the 1954 decision in Brown v. Board

of Education of Topeka that segregated

schools were unconstitutional. Since that time,

the jurisprudence of equal protection has expanded considerably. Modern interpretations

of the equal protection clause subject governmental categorizations of people to various

levels of scrutiny, with classifications along

race and alienage receiving the strictest scrutiny, and then gender.

The prohibition against invidious discrimination contained in the equal protection clause

is based, in large part, on the moral and political conviction that people are essentially equal,

and that government action cannot be based

on designations of a group that are arbitrary

from a moral and political point of view.

Although science and technology were probably not directly responsible for the emergence

of equality as an important constitutional

value, they have contributed greatly in its implementation. The Brown decision relied heavily on the findings of social science to support

its reasoning, and modern technology has

helped to reduce many of the barriers to employment and military service that were once

thought to be justifications for discrimination

based on gender.

In the future, science and technology will

contribute to ongoing debate over the meaning of, and basis for, equal protection of the

law. Thanks to science and technology, people are living longer, and continue to be productive well into old age. It is possible, therefore,

that classifications based on age will become

ever more suspect.

Furthermore, as our knowledge of the genetic component of ability, aptitude, and behavior grows, it may be possible to identify
17

not only what is common to all human beings,

but also what is different. Should science establish characteristics belonging to distinct categories of people, we may face constitutional

dilemmas between moral value and scientific

truth. Science may test the concept of “equality," which has been left an undefined postulate of the law, and require that it be better

articulated and more firmly rooted in moral

and legal discourse.

Due Process of Law

One of the most well known and cherished

of constitutional phrases appears in the Fifth

Amendment: “ . . . nor [shall any person] be

deprived of life, liberty, or property, without

due process of law. . . .“ It is repeated in the

Fourteenthth Amendment, this time as a specific restraint on State governments.

The phrase or its equivalent in English common law and some State constitutions, often

expressed as “the law of the land, ” is derived

from Magna Carta. As they have evolved in

the jurisprudence of the Fifth and Fourteenth

Amendments, the due process clauses have

come to stand for two independent protections:

an assurance of procedural rationality, consistency, and integrity in any government action that could deprive a person of “life, liberty, or property”; and certain substantive

rights not laid out explicitly in the Constitution but deemed essential to the principles of

American democracy.

In its procedural meaning, “due process”

does not turn entirely on the existence of rules

laid out by legislatures or administrative agencies. It is instead an independent protection

against the deprivation of rights established

by the Constitution or by State or Federal law.

It forbids capricious governmental actions.

The Supreme Court has held, for example, that

due process standards must be met in such varied contexts as the allocation of welfare payments, aspects of criminal trials not covered

by more explicit provisions, the suspension or

expulsion of children from public schools, and

the dismissal of persons in the employment of

State or Federal Government.

As a source of substantive rights, the concept of “due process” has had a more checkered history. From the turn of the century into

the 1930s it stood for a right to contract, and

was used by the Supreme Court to negate

many laws, such as laws aimed at occupational

health and safety or conditions of employment.

In more recent times it has been used, for example, to protect the liberty to educate one’s

children in a school of one’s choice, to study

a foreign language, to use contraceptives, and

to travel across state lines. The due process

clause of the Fifth Amendment, moreover, is

the source of the substantive protection

against invidious discrimination by the Federal government, a right explicitly protected

by the Fourteenth Amendment against intrusion by the States.

Technological change has affected both dimensions of due process. On the procedural

side, for example, pretrial publicity facilitated

by modem means of mass communications presents complexities in criminal trial procedures

that were unknown when the due process clauses

were added to the Constitution. In terms of

substantive rights, science and technology

have developed new ways of intruding on personal autonomy protected by due process.

The Penumbra of Privacy

The rights and protections spelled out in the

ten amendments of the Bill of Rights and in

the Fourteenth Amendment affirm and define

a sphere of personal autonomy that is protected against any but the most powerful overriding interests of state. This principle was a

basic tenet of 18th century political thought

and was and is a cornerstone of constitutional

government.

But this right to privacy was seldom articulated until 1965. Then, in the case of Griswold

v. Connecticut, the Supreme Court struck

down an anticontraceptive statute as an infringement of the fundamental right of ‘marital privacy. The reasoning in this and subsequent cases is that the intent of the Bill

of Rights as a whole and hence of the Fourteenth Amendment, was to provide an addi-
18

If your life can be maintained indefinitely by a machine, do you have a

constitutional right to treatment? to

refuse treatment?

Would life-long quarantine of AIDS

sufferers be unconstitutional? What

about mandatory AIDS testing?

tional bulwark against governmental intrusion

on rights so fundamental that one need not or

could not list them. They were inherent in the

idea of free men banding together of their own

accord to form a government.

The extent of this sphere of personal autonomy is now being tested, and nowhere more

urgently than in regard to decisions about

one’s own body —i.e., decisions about life,

death, and reproduction. Medical science and

technology, and even more fundamental advances in biological sciences, are significantly

extending the range of choices and decisions

that individuals and society have, or may have

in the future, involving values and trade-offs

that are both intensely personal and value

laden.

The decision to acceptor reject life-support

systems is one that more and more people are

already having to make; and the decision of

whether and when to terminate the use of such

systems may be all the more difficult, since

it must usually be made by someone other than

the user. In the future “life-support systems”

may be entirely internal-e. g., a totally implantable heart. Will the ethical, legal, and constitutional questions be the same? The capability of saving, maintaining, and enhancing

life with technological systems that, because

of their complexity, risk, and cost, are inherently and necessarily limited resources will

raise public policy issues, as did kidney dialysis. Is the opportunity to continue living to

be a market good or will there be another means

of allocating or rationing these technological

capabilities? These painful choices, however

made, will likely be challenged on constitutional grounds, as have the funding of other

advanced medical technologies.

At the beginning of life, also, constitutional

challenges are likely to arise from new reproductive technologies such as third-party surrogacy, use of donated frozen embryos, and fetal surgery and other interventions in utero.

The common thread in extreme medical interventions at the beginning and end of life is that

new and enhanced medical capabilities force

new decisions on individuals and families, or

change the balance of risks and benefits involved in traditional decisions, and by so doing, force legislators and courts to reexamine

the interest of the State in those decisions.

In public health programs also, new constitutional issues are emerging that require reexamination of the traditional balance between

individual rights and the general welfare. Enhanced capability to test individuals for exposure to risk, for infectivity, for use of prohibited

or controlled substances, and for vulnerability

to disease or injury are raising serious questions about the government use of such techniques and its obligation to protect the privacy

of the subjects. Even more intrusive or restrictive social control measures may be proposed

in the future, ranging from quarantine of individuals to regulation of critical industries,

whenever our technological capability to manage or reduce or remove risks lags behind our

scientific capability to identify and track them.

The power to intrude effectively into the core

of personal privacy and autonomy in order to

protect the interests of society was technologically limited in 1787. The ability of government

to know about, and to act with regard to a specific individual, was in most cases slow, cumbersome, and highly visible, and so in most

cases was effectively constrained by the simple prohibitions listed in the Bill of Rights. The

power of government to investigate, monitor,
If a violent psychotic murderer could

be reliably cured with surgery or longacting implantation of drugs, would

he or she have a constitutional right

to refuse treatment?

and manipulate the behavior of specific individuals is not now so technologically limited,

and it will be less so in the future. Biological,

19

chemical, electronic, social, and behavioral

technologies can be expected to extend and

strengthen those capabilities. The limits on

their use must be found in law and policy, and

in the continued reliance on the Constitution

as the supreme law of the land. Strong legislative and judicial actions may be necessary to

protect that sphere of individual, private activity that the Founding Fathers cherished and

that the Constitution has always implicitly

protected.

CONCLUSION

This brief review of the principles of the

United States Constitution highlights some of

the ways in which advanced technology will

test the basic premises of American government in the years to come. More detail will be

provided in a series of Special Bicentennial

Reports by the Office of Technology Assessment. These reports seek to stimulate serious

consideration of some of the difficult constitutional problems that must be faced as our Constitution enters its third century. The Constitution has proved to be enormously resilient

in the past as technological change has altered

the basic functions and responsibilities of government. It will need to be equally resilient in

the future.
ACKNOWLEDGMENTS

Workshop Participants

Science, Technology, and the Constitution

in the Information Age Workshop

Feb. 26, 1987

Tom Cavanagh

National Academy of Sciences

Committee on the Status of

Black Americans

Ira Chaleff

Congressional Management Foundation

Mary Culnan

Associate Professor

The American University

Kogod College of Business Administration

Christopher Deering

Department of Political Science

George Washington University

Stephen Frantzich

Congressional Data Associates

Judith Lichtenberg

Center for Philosophy and Public Policy

University of Maryland

Paul Light

National Academy of Public Administration

Michael Malbin

Department of Government and Political Science

University of Maryland

Thomas Mann

American Political Science Association

Mark Mellman

Information Associates

Norman Ornstein

American Enterprise Institute

Mark Rovner

Rossevelt Center for American Policy Studies

Gary Serota

Congressional Management Foundation

Scientific Communications, National Security,

and the First Amendment Workshop

Mar. 11, 1987

Allan Adler

American Civil Liberties Union

Kenneth Allen

Information Industry Association

Jerry J. Berman

Director, Project on Privacy and Technology

American Civil Liberties Union

Daniel DeSimone

Executive Director

American Association of Engineering Societies

Diane Fountaine

Director, Information Systems

U.S. Department of Defense

Harlow Freitag

Chairman, Technology Transfer Committee

Institute of Electrical and Electronics Engineers

Stephen Gould

Committee on Scientific Freedom and Responsibility

AAAS

Harold P. Green

National Law Center

George Washington University

Richard Kleeman

Association of American Publishers

Jonathan Knight

American Association of University Professors

Harold C. Relyea

Specialist in American National Government

Congressional Research Service

Frank Sobieszczyk

Chief, Research Programs Office (DTAO)

U.S. Department of Defense

Paul Stephan

University of Virginia

Tom Suttle

Institute of Electrical and Electronic Engineers

Mitchell B. Wallerstein

National Academy of Sciences

Criminal Justice Workshop, Apr. 21, 1987

S.S. Ashton, Jr.

Assistant Director

Bureau of Justice Statistics

U.S. Department of Justice

Robert R. Belair

Partner

Kirkpatrick & Lockhart

Alfred Blumstein

Dean

School of Urban and Public Affairs

Carnegie Mellon University

20
27

— .

James Duggan

Director

New Hampshire Appellate Defender Program

Stephen Goldsmith

Office of the Prosecuting Attorney of Marion

Count y

Joe Graino

School of Law

Wayne State University

Kay Knapp

Executive Director

U.S. Sentencing Commission

Henry Lee

Chief

Connecticut Forensic Laboratory

Peter Low

Hardy Cross Dillard Professor of Law and John V.

Ray Research Professor of Law

School of Law

University of Virginia

Dan Mansfield

Research Associate

ACLU Prison Project

Clinton Pagano

Superintendent of State Police

New Jersey State Police

Richard Saferstein

Chief Chemist

Forensic Science Bureau

New Jersey State Police

Tom Smith

Assistant Director

Criminal Justice Section

American Bar Association

James Starrs

National Law Center

The George Washington University

William Stunz

School of Law

University of Virginia

Historical Perspectives: Technology and

the Constitution Workshop, Apr.25, 1987

David Allison

Natural Museum of American History

Smithsonian Institute

Gordon Bermant

Federal Judicial Center

Research Division

Ronald Calinger

Department of History

Catholic University of America

Ed Ezell

Curator of the Division of Armed Forces History

National Museum of American History

Smithsonian Institution

William Haskett

Professor of History

University of the District of Columbia

John Holmfeld

Committee on Science and Technology

U.S. House of Representatives

John Langan

Woodstock Theological Center

Lilly Kay

American Philosophical Society Library

Ray Kondratas

Medical Science Director

National Museum of American History

Peter Kuznick

Professor of History

American University

Wayne McGovern

Chief Mesocale Branch

National Weather Service

U.S. Department of Commerce

James Mohr

Kerry Morgan

Director

Bicentennial Project

CBN University

Phil Mundo

Political Science Department

Drew University

Robert Oleson

Institute for Alternative Futures

Emily Van Tassel

Associate Editor

The Documentary History of the Supreme Court

Supreme Court of the United States

William A. Thomas

Law& Science Associates

James Wallace

University of Maryland

College of Computer, Mathematical and

Physical Sciences

Biological and Medical Technologies

Workshop, May 6 and 7,1987

M. Les Benedict

Golieb Visiting Fellow

New York University School of Law
22

Pat Browder

Professor of Surgery

University of North Carolina

Ira Carmen

Professor of Political Science

Department of Political Science

University of Illinois

William Chech

Medical & Scientific Communications, Inc.

Tom Christofel

Associate Professor

Health Resources Management

School of Public Health

University of Illinois at Chicago

John Duffy

Professor of History, Retired

University of Maryland

Daniel Fox

Professor of Humanities in Medicine

State University of New York at Stony Brook

Larry Gostin

Executive Director

American Society of Law and Medicine

Howard Kaye

Assistant Professor

Department of Sociology

Franklin and Marshall College

Arthur Kohrman

Professor of Pediatrics

University of Chicago

LaRabida Children’s Hospital

Gretchen Kolsrud

Program Manager

Biological Applications Program

Office of Technology Assessment

U.S. Congress

Maeva Marcus

Resident Director

Documentary History Project

Supreme Court of the United States

Katie Maslow

Analyst

Biological Applications Program

Office of Technology Assessment

U.S. Congress

Larry Miike

Project Director

Health Program

Office of Technology Assessment

U.S. Congress

David Strauss

Assistant Professor

University of Chicago Law School

Laurence R. Tancredi

Kraft Eidman Professor of Medicine and Law

Director of the Health Law Program

University of Texas Health Science Center

Robert S. Wachbroit

Research Associate

Center for Philosophy and Public Policy

University of Maryland

Dan Wikler

University of Wisconsin Medical School

Contractors

George Annas

Schools of Medical and Public Health

Boston University

Christopher Arterton

Dean

Graduate School of Political Management

Christopher Burns

President

Christopher Burns, Inc.

Jeffrey P. Cohn

Editor

Bernard Davis

Professor Emeritus

Harvard University

John Duffy

Professor Emeritus

Harvard University

John Dwyer

School of Law

University of California, Berkeley

William N. Eskridge, Jr.

Assistant Professor of Law

University of Virginia

Leonard Glantz

Associate Director

Boston University School of Public Health

Harold Green

Professor of Law

National Law Center

George Washington University

Sheila Jasanoff

Program on Science. Technology, and Society

Cornell University

Irene Jillson-Boostrom

Policy Research, Inc.

Carl Malamud

Consultant
Michael Marien

Editor

Futures Survey

Richard Merriman

Executive Director

The Jefferson Foundation

Abbe Mowshowitz

Department of Computer Science

Technology Impact Research

June Osborn

Dean

School of Public Health

University of Michigan

Harry N. Scheiber

School of Law

University of California

Search Group, Inc.

Sacramento, California

Cass Sunstein, J.D.

Professor of Law

University of Chicago Law School

Eric Uslaner

Professor of Government and Politics

University of Maryland

Clyde Behney

Program Manager

Health Program

Audrey Buyrn

Program Manager

Industry, Technology, and Employment Program

Alto Charo

Analyst

Biological Applications Program

Richard Dalbello

Senior Anlayst (Project Director)

International Security and Commerce Program

23

—

Bob Friedman

Senior Associate (Project Director)

Oceans and Environment Program

Val Giddings

Analyst

Biological Applications Program

Lisa Heinz

Analyst

Science, Education, and Transportation Program

Sue Koch

Analyst

Communication and Information Technologies

Program

Gretchen Kolsrud

Program Manager

Biological Applications Program

Katie Maslow

Analyst (Project Director)

Biological Applications Program

Larry Miike

Senior Associate (Project Director)

Health Program

Nancy Naismith

Program Manager

Science, Education, and Transportation Program

Priscilla Regan

Analyst

Communication and Information Technologies

Program

Peter Sharfman

Program Manager

International Security and Commerce Program

Joan Winston

Analyst

Communication and Information Technologies

Program

o