Methods and Materials in Constitutional Law: Some Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies

Abstract:     
Thomas Hobbes, while no friend of democracy, thought a great deal about it. He simply could not see the point in it. And his objections to democracy still challenge us to think hard about our own constitutional structures. What kind of democratic or popular government do we have? What role do our constitutional structures envision for “the people,” and how are the people to fulfill that role? How active a role are the people to play? If the role of the people is to be relatively passive, their need for information may not be great or immediate. If the people are to be actively involved in government, however, they will need information, some of which may be accessible only through the government, and they will need it on a timely basis. But government cannot function entirely in the round. How can political and legal systems most effectively ensure citizens with access to the information they need, while also protecting the effectiveness of government? Government secrecy presents a critical set of issues for representative government.

The purpose of this essay is not to try and answer those questions, but to suggest how we might profitably think about them. They can be approached, of course, from the perspectives of political philosophy and constitutional theory, but this essay will be more concerned with whether, how, and why specific constitutional and legal arrangements may work in practice.

Number of Pages in PDF File: 23

Keywords: Constitutional law, comparative constitutional law, socio-legal studies in constitutional law

JEL Classification: K1, K19, K40

Accepted Paper Series