Oregon State Bar Bulletin — NOVEMBER 2002

Parting Thoughts
Government Secrecy
By R.P. Joe Smith

When the Founding Fathers met in Philadelphia to rescue the disintegrating confederation of the13 'states' (which in the parlance of the day meant countries), there were two distinct lines of thought. On one hand was Alexander Hamilton, who, impressed by events like Shays’ Rebellion were convinced 'the People' were not to be trusted with affairs of state; on the other, the followers of Thomas Jefferson, who had proclaimed that only the People could be trusted.

Variations ranged from those who openly plumped for a king to those who saw any central government as a dangerous (and perhaps unneeded) threat to liberty; those two seemingly irreconcilable threads underlay all the deliberations. At the heart of the debate lay the competing human desires for liberty and for order: they prized freedom (at least for white landed males), but they also wanted security and stability.

The resulting Constitution was neither a victory for, nor a repudiation of, either view. In a remarkable and unique way, it was an admission by each side that the other side was right — right, at least, when timing was considered.

The Constitution they proposed acknowledged the fact, demonstrated historically going back at least to the plebs’ reaction to Antony’s speech over Caesar, that the initial reaction of 'the People' to an apparent emergency or crisis was likely to be wrong. Wrong, particularly, because they too easily succumbed to the demagogue-come-tyrant, who would incite them in ways destructive of both liberty and order.

But it also paid homage to an undeniable fact: governments exist only at the consent of the governed. That consent may be unrecognized by the governed and the governors; it may be coerced through fear and oppression or corruption and greed; but the pronouncement 11 years earlier in the Declaration of Independence was not a revolutionary wish, but an empirical truth. Ultimately, acceding to governmental authority is a choice, and if enough of the governed cease to accede, the government ceases to exist. It then accepted the Declaration’s premise that governments exist to provide for the good of the governed and to protect 'life, liberty, and the pursuit of happiness.'

Finally, it recognized that no matter how much a person or a group might be momentarily moved by altruism to beneficence, over time he, she or they will pursue their own, often selfish, self interest. Including, or perhaps especially, those in government. This meant that if a government were, over time, to serve the benefit of the governed, the governed — the People — must have the final say. So the framers accepted Jefferson’s premise, but with a critically important caveat: yes, the People can be trusted to choose wisely, but only when given the necessary facts, and time to consider and digest those facts. Time to exercise what Pope called a 'sober second sense.'

They gave us a republic — a government limited to specifically delegated authority and to such powers as are inherently necessary to exercise that authority. And by an amendment promised to garner approval, they reserved all other power and authority to the 13 countries, 'or to the People.' The framers felt so strongly about the advantage of republics over pure democracies that they gave the federal government the duty to see to it those 13 countries would also be republics. (Some people think Article IV section 4 was to protect against a state becoming a dictatorship; it was at least as much to assure against pure 'democracy' – rule by the mob.)

It should therefore be so obvious as not to need saying that the success of the United States demands that the people be given the facts, and all of the facts, relevant to policy decisions of government. Yes, those facts in the short run may trigger dangerous emotions. Yes, demagogues may exploit those emotions. But, because the checks and balances built into the constitutional decision process slow things down, if the people are given the facts and time to digest and debate, they will support the wisest course of action.

If that is wrong, if there is no 'sober second sense,' then the Constitution was a mistake.

I do not believe it was a mistake.

But I do believe we, the people, can turn it into a mistake, if we allow those holding the reins of government to hide the truth — to withhold the facts. And even more, if we, the people, fail to exercise our duty to examine and discuss the facts, to look at the truth, and to communicate our 'sober second sense' to the rein-holders.

There then should be no government act which incites greater public resistance than depriving us of relevant information. And we must not accept the excuse that war provides an exception.

Over the last 20 years we have seen government secrecy become epidemic. Now the U.S. attorney general instructs government agencies to resist disclosure whenever possible, and the president announces that acts of previous presidents, and their appointed servants, shall not be revealed without their express permission. Our ex-presidents. Our ex-cabinet members. We, holders of the ultimate duty to decide the direction of our republic, shall not be given the necessary historical data upon which to base decisions, without their say-so. Over time people and groups will pursue their self-interest, and whether elected or appointed, will see to it not to be embarrassed — especially if they acted illegally. Inevitably they will decline to release the information the people, if the Constitution is to work, most need to know.

We simply must not allow that to happen.

R.P. Joe Smith, an active member of the Oregon State Bar, lives in Portland.

© 2002 R.P. Joe Smith

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