James Madison vs. Government Secrecy - Commentary by Steve Scroggins

Steve Scroggins

Steve Scroggins is a volunteer contributor to the Georgia Heritage Council who lives in Macon.

James Madison vs. Government Secrecy – Commentary by Steve Scroggins

Our fourth President (1809-1817), James Madison, was born March 16th. How appropriate that the anniversary of this great Founder's birth always falls during what has been dubbed as "National Sunshine Week."

After all, it was Madison, the acknowledged 'Father of the Constitution,' who wrote,

"Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

In other words, accepting the precept that 'governments derive their just powers from the consent of the governed,' what Madison was saying was that citizens must be informed in order to deliver informed consent. That is, they must have access to information (open government) AND avail themselves of it. Madison wrote on the subject extensively, but many of other Founders held and expressed the common belief that a free society cannot exist without an informed citizenry.

And what if that citizenry is without the means to be informed? It doesn't matter whether that lack of information is due to apathy, or government secrecy in the name of "national security" or local/State government secrecy in the name of "higher employment" and "competitive advantage." Regardless of the 'justification' for secrecy, the result is the same. Madison stated it quite succinctly...

"A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both."

Both 'farce' and 'tragedy' seem to apply to our governments at the state and national empire levels.

Back in 2005, bills were filed in the Georgia legislature that would enable local governments to work in secret with 'corporate interests' to take land (via the government force of eminent domain) from private land owners and give it to corporate interests that promise to generate more tax revenue. Eminent Domain is supposed to be used only to secure "the public good" (e.g., public roads, buildings and rights-of-way) with "just compensation," NOT to take from one private owner and give to another in the name of "revenue-base enhancement" or to "remove blight."

On the up side, media outlets began screaming foul early in 2005 and in this instance they did their duty to sound the alarm and alert the public when governments threaten to withhold information or enact laws to shield their activities from public scrutiny. In 2006, some strong bills emerged to address the eminent domain issue, only to be watered down by Perdue and whatever shady interests he was representing. With Secret Chamber Man, you never know. After saying he wouldn't meddle in the legislature's business, somebody 'persuaded' him to do some hands on legislating and lobbying. Perdue's Lying Habit grew more and more legendary.

Do a Google Search for "national sunshine week." Then compare the ideas presented there with the prevalent theme of legislation advanced during the 2005 Georgia General Assembly and continuing through 2006. Have a look at the list of pending legislation (some good, some bad) that impacts citizen access and open government.

This link is a good one to keep, the Georgia First Amendment Foundation pays lawyers to sift through pending legislation to assess its impact of open government. For example, GFAF describes HB 283 as follows:

"Annual attempt to allow public agencies to require that open records requests be made in writing."

The phrase "annual attempt" suggests that government likes to keep secrets and is perpetually searching for ways to shield their activities from public scrutiny. In the case of HB 283, they want to lay down a wall of red tape barbed wire to make actual information access more difficult.

The tragedy is that the 2005 legislative session squandered precious time in an effort to pass legislation that everyone KNEW---they HAD to know---that the public did NOT want. The farce is that they had the audacity to think they could get away with it or force it through despite the opposition. Several secrecy bills were still pending in 2006; the 'powers that be' apparently decided NOT to ramrod them through during an election year. Instead, they scrubbed any meaningful agenda to pass placebo and lip-service legislation designed to shield them in an election year.

Now, in 2007, patience and caution seem to be the approach with respect to secrecy legislation compared to 2005. The Georgia Economic Developers Association has posted their legislative policy agenda on their website which contains the following item on their list:

"Prospect information & competitiveness: Support legislation to provide for the timely release of information concerning economic development clients of state and local agencies so that Georgia’s opportunity to effectively compete for new jobs and investment is preserved."

Read into this above what you will. To me it means that they have NOT given up on the same secrecy desires, they're just biding their time to get the legislation they want. "Timely release" to my paranoid mind means that public notice is made only after it's too late to stop a "public/private" project from going forward. In 2007, Senate Bill 200 provides for "infrastructure development districts" but the need for a boost to developers has not been made. As The Macon Telegraph points out, there is no lack of growth in Georgia. As GFAF points out, these "private municipalities" should be subject to the same open records law as public entities. Obviously, developers would like to shift some of the financial risk from themselves onto local taxpayers, but aside from that, the other obvious advantage to being "private" is to seek to avoid public scrutiny.

Again, it doesn't matter whether essential information---and therefore essential power and essential liberty----is surrendered in the name of "security" or in the name of "economic development." The result is the same.

As Mark Twain once said, "No man's life, liberty or property are safe while the legislature is in session." True as that is, it's the local governments that are more likely to take away your property or permit a zoning change that's detrimental to your quality of life and property values.

The feds, on the other hand, can limit your land use by regulation (e.g., wetlands or EPA regs) and thus effectively seize your land without having to take title or go to court. In theory, Executive Order 12630 protects property rights by requiring "just compensation" pursuant to the 5th Amendment to be invoked when a regulation or land use restriction effectively deprives a land owner of rights. However, the land owner is required to prove it in court against the deep pockets of the national government. This executive order from 1988 has not stopped federal agencies from flexing their regulatory muscle.

Aside from your land and property, the empire is also slowly eroding all the other protections enumerated in the Bill of Rights...and they're attempting to do so under a veil of secrecy. Our life and liberty is expendable at the discretion of government agents in the name of "national security."

A recent survey by the National Security Archive reveals that only one in five federal agencies comply with the Electronic Freedom of Information Act (E-FOIA) laws passed by Congress ten years ago. Yet, the Congress is busy passing more sunshine laws and we're left to wonder whether they'll be enforced either. And when we see headlines such as "FBI Abuses May Lead to Patriot Act Limits" we are understandably skeptical that lawmakers will do anything meaningful to address government abuses...especially when we see story after story that suggests that the President (as affirmed by the 4th U.S. Circuit court) can do ANYTHING in the name of "national security."

In his essay, The US of Tyranny, Christopher Manion summarizes the situation as follows:

"Anyone – whether a foreigner or an American citizen – can be kidnapped, at home or abroad, either by a foreign government at the request of the U.S. government, by an agent or employee(s) of the U.S. government or by the U.S. government itself. That person can then be transported anywhere in the world, imprisoned indefinitely, kept from any outside contact, tortured, even killed. "

President Bush, in invoking the "state secrets" doctrine, can keep his minions safe from the prying eyes of the courts and We, the People. The Framers of our Constitution feared an executive with unlimited powers, but as we know from history, Abraham Lincoln wielded similar tyrannical powers and yet he is now lauded by ill-informed citizens as a "great president."

Author Charles W. Smith, in his biography (1973) of U.S. Supreme Court Chief Justice Walter B. Taney, gives the following account of civilian arrests under the Lincoln regime:

"Without the sanction of law the federal government arrested men by the thousands and confined them in military prisons. The number of such executive arrests was certainly over 13,000, and it has been estimated to have been as high as 38,000 (Columbia Law Review, XXI, 527–28, 1921). This policy was bitterly criticized in some quarters, but it is generally assumed that the people as a whole supported the arrest policy."

Obviously, popular support for Lincoln's suspension of habeus corpus or for Bush's flagrant tyranny is irrelevant. We, the People of the States, are the sovereign authority, but we also agreed (by ratifying the Constitution) to live under the rule of law. Unless and until the 4th and 5th Amendments are repealed or revised by constitutional convention and ratified by conventions of three fourths (38) of States, then the provisions of the Bill of Rights remain in full force and effect regardless of the words or deeds of the executive, the judiciary or the Congress.

Wire taps, electronic surveillance, financial records searches are all carried out by the FBI, CIA, NSA and other nameless agencies with little of no accountability. Headline after headline brings home this chilling reality to Americans interested enough to read the news. Recent polls demonstrate that the vast majority of Americans believe that the federal government operates with too much secrecy. (Duh!) Despite President Bush's arguments for greater latitude for the FBI and other federal authorities, most Americans think that federal court orders and search warrants (judicial oversight) remain a good idea. This is good, but again it's largely irrelevant. There is an amendment process to follow and until then the Constitution is supposed to be the law of the land. Any President, Congressman, federal judge who is flagrantly derelict in his duty to uphold the Constituion should be held accountable as provided by the Constitution.

Far from being fans of the ACLU (due to their hostility to religion, religious freedom, the 2nd Amendment, etc.), they make a compelling case that the Patriot Act is being systematically abused. Despite substantial evidence of abuse, Congress authorized an extension of the Patriot Act.

"Experience hath shewn, that even under the best forms [of government] those entrusted with power have, in time, and by slow operations, perverted it into tyranny." --Thomas Jefferson

"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." --James Madison

"If the president claims extraordinary wartime powers, and we fight undeclared wars with no beginning and no end, when if ever will those extraordinary powers lapse? Since terrorism will never be eliminated completely, should all future presidents be able to act without regard to Congress or the Constitution simply by asserting, ‘We’re at war’?" --Rep. Ron Paul, 2004

"Secrecy is the beginning of tyranny." --Robert Heinlein

Despite fears and warnings of a potential police state environment under the Patriot Act, that camel is already in the tent, folks. As surveillance, camera and computer technology continue to improve, no totalitarian regime worth its salt wants to be without these "tools" for control. With the prospect of an unending war against terror, it will remain the highest challenge to drive that camel from the tent and keep him out. When the nose reappears, we must strike it with convincing force.

Based on his writings, we all know where James Madison stood with regard to open and accountable government. ALL of the government's just powers derive from our informed consent. If we allow them (our governments) to continue to withhold or conceal information----for ANY reason----we will accelerate even more rapidly down the proverbial slippery slope...into the abyss of tyranny. The point of no return is coming very soon. Can We, the People, apply the brakes in time?

"[T]he necessity of any Government is a misfortune. This necessity however exists; and the problem to be solved is, not what form of Government is perfect, but which of the forms is least imperfect." ----James Madison

Steve Scroggins lives in Macon and contributes most of GHC's parody and political cartoons and graphics.