The Constitutionality of the State Secrets Privilege: The Reynolds Privilege in Originalist Context

Abstract

The following essay analyzes the state secrets privilege in its present incarnation, an evidentiary privilege capable of causing pre-discovery dismissal, in order to determine whether it can be reconciled with the original meaning of the Constitution. Part I traces the judicial origins and explanations of the privilege, in order to define its scope and effects at present. Part II discusses the textual, structural and historical arguments in favor of the constitutionality of the present incarnation of the state secrets privilege. As will be explained later, the constitutional text permits, implicitly, the use of the state secrets privilege, in its capacity as an adjunct to the executive power. Second, the constitution’s structure necessitates the existence of such a privilege. The nature of the judicial and legislative branches, confronted with the exigencies of statecraft, especially in light of the shortcomings of the Articles of Confederation, required a unitary executive capable of controlling and prioritizing information implicated by matters of foreign affairs, even by restricting the flow of information to Congress and the Courts. Finally, presidential practice, judicial acquiescence and the understandings of the framing generation augur for the privilege’s constitutional legitimacy. When judges have confronted its exercise, they have, by and large, abdicated any ability to countermand it. Rather, they have tied its use to two sources, the Anglo-American common law of evidence and the structural position of the executive within the constitutional framework. This article analyzes the latter source, to show that courts are correct to say that the privilege “performs a function of constitutional significance.”