National Identity Cards: Fourth and Fifth Amendment Issues


In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely national identity system: requests or demands that individuals present their identification cards; and governmental collection, retention, and use of personal information to be used in identity checks. These issues are evaluated in several different contexts in which they might plausibly arise.

This Article concludes that while the Fourth Amendment might bar certain practices, and block others depending on their purpose, it would be possible to have a constitutional national identity card system of a fairly comprehensive type. The constitution reduces the potential benefits of requiring a national identity card, but it does not prevent us from having and using one. Even where an identity system would not strictly run afoul of the Fourth and Fifth Amendments, however, an analysis of the interests those provisions are designed to protect provides an insight into the price in privacy and liberty a national identity card would exact. The article also indicates how these effects might be mitigated somewhat in the system?s design. In that sense, this article hopes to illuminate not only what kind of national identity system the U.S. lawfully could have, but how it might be devised, and, implicitly, whether we want to have one at all.


Administrative Law | Constitutional Law | Criminal Law | Criminal Procedure | Human Rights Law | Immigration Law | Science and Technology Law

Date of this Version

October 2003