The Invisible Citizen in the Digital State: Administrative Law Meets Digital Constitutionalism

Constitutional law and administrative law are inseparable partners in the protection of fundamental rights. Yet, in the digital state, where rights and access to public services are increasingly mediated by digital government platforms and automated systems, the role of administrative law has become invisible. This invisibility is translated at two levels: first, with digitalisation, government has become invisible to citizens due to the gradual disappearance of government counters, human assistance, and, in some countries, the growing mistrust in government. Second, the public sector no longer sees citizens as individuals with rights, perceiving them instead as data points to be processed through risk assessments and standardised methods for fraud prevention and law enforcement. This invisibility is problematic because when citizens do not see what administrative law entails (and vice versa), many citizens become excluded from exercising their rights on equal terms and contesting decisions that disregard their interests. In the Netherlands, following the Childcare Benefit Scandal, many scholars argued that the solution for this problem was to offer a more individualised, human, and citizen-centred approach to law. This chapter chooses a different route, focusing on the interplay between the constitutional granting of rights and the administrative law procedures that operationalise them. This chapter does so by drawing on digital constitutionalism, a scholarly trend which seeks to understand how the values of contemporary constitutionalism (democracy, the rule of law, human dignity, and the protection of human rights) are being reshaped in the digital context, namely by the interaction of public and private interests. In this chapter, I seek to understand the ‘invisibility problem’ through a holistic approach to the digital transformation of the public sector, combining digital constitutionalism with administrative law.