Comment: Government Secrecy and the Constitution

Abstract

First, I agree that the first amendment can be understood, as Professor Sunstein suggests, as an organizational, structural provision.' His reformulation of the Meiklejohn approach provides the right focus: one of the functions of the first amendment is to protect against self-interested representatives and the risk of usurpation by government factions-or, put differently, the first amendment helps assure that the emperors' nakedness will be pointed out when they falsely claim to be clothed in the public interest.2 This function of the first amendment is of prime importance when we consider government secrecy. My second agreement with Professor Sunstein has to do with his rejection of what he calls the equilibrium theory.3 I grant that aesthetics is about all it has going for it. Now let me turn to my disagreements and questions. First of all, the characterization of Professor Sunstein's own approach as Jeffersonian, while conceptually acceptable, is historically misleading. To be sure, Jefferson thought it was an abominable precedent to conduct the Constitutional Convention in secrecy, yet as president, Jefferson emphatically asserted the authority to claim what has since become known as executive privilege.4 Secondly, even though I accept Professor Sunstein's structural view of the first amendment and his broad redefinition of the purposes it serves, I still consider its text and history as severely limiting its rele-