Executive Exposure: Government Secrecy, Constitutional Law, and Platforms for Judicial Elaboration

Abstract:     
American law never reached a satisfying conclusion about public access to information on government operations. Recent events are prompting reconsideration. As we assess our current system, three limits on past debates should be discarded. The first involves ignorance of foreign systems. Other democracies grapple with information access problems, and their recent experiments are illuminating. Indeed they expose two additional domestic weaknesses. One is a line we have drawn within constitutional law. Courts and commentators tend to treat issues of public access separately from issues of executive discretion to withhold information. These matters should be seen together, and when they are, it is difficult to constitutionalize one without the other. The final deficiency concerns the boundary between constitutional and ordinary law. In a very practical sense, constitutional law and judicial intervention in this field should turn on the character of non-constitutional law - whether non-judicial actors have built an adequate platform for judicial action. That connection is not obvious, but a defensible access system is impossible without confronting it. This Article aims to remedy these three mistakes, and it presents a method for evaluating judicial platforms in the information access context and beyond.

Keywords: government secrecy, right to know, information access, freedom of information, democratic theory, comparative constitutional law, first ammendment, executive privilege, judicial review, platforms

Accepted Paper Series