Honoring Madison's constitutional legacy

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

03.22.99

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	James Madison

For Americans who understand and respect their democratic destiny, this is venerated soil.

Right here at this place, on these grounds, James Madison researched and organized the principles that made him the leading drafter of Virginia's first Constitution and the Virginia Declaration of Rights.

Right here at this place, on these grounds, he compiled an exhaustive study of ancient and modern confederacies, drafted an agenda for the Constitutional Convention, and perfected a vision of representative government that ultimately would earn him the richly deserved title of "Father of the Constitution."

Right here, on these grounds, he agonized over a considered position on whether the U.S. Constitution should have a Bill of Rights to make it one of the most enduring and powerful declarations of a democratic society in all of history.

Honoring this Madisonian legacy, the Virginia Coalition for Open Government hosted a gathering of politicians, lawyers, journalists, librarians, civic leaders and others at Montpelier on March 18. The purpose was to discuss the state of access to government information in the commonwealth.

The Virginia governmental landscape, as in all other states, is pockmarked with instances of delay and denial for ordinary citizens seeking public information. So there was much to report, to examine, to lament, and to decry.

But there was also much to celebrate. The coalition recognized two legislators for their leadership in the passage of needed improvements to the state's Freedom of Information Act, a number of journalists for their remarkable and revealing audit of FOI compliance by local officials in all 135 counties, and the Blacksburg-area League of Women Voters for its work on behalf of access.

The tradition these individuals and groups had followed was eloquently articulated by Madison in these well-known words:

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

These words make it clear that in a truly democratic state, information is the equivalent of knowledge — or, at the least, its prerequisite. And beyond its intrinsic value for the individual and society, knowledge is the equivalent of power.

In Madison's vision, knowledge doesn't just enable and enrich, it empowers. The sharing of information places the governors and the governed on an equal footing in the democratic process. Government information must be public information — unless and until there is a mutual agreement about what information should not be routinely disclosed.

James Madison worked hard, supported by his friend Thomas Jefferson and others, to instill that principle into everyone's idea of representative government.

Somewhere, though, between the Age of Reason that agitated Madison's mind and the Age of Knowledge that excites our own, some of our elected leaders lost sight of that democratic vision of shared power through shared information.

What would James Madison think about the state of open government today?

It's doubtful that even a mind of Madison's depth and scope could have imagined or anticipated the forms that our so-called "representative government" would assume over the ensuing two centuries — layer upon layer of bureaucracy; regional, technical and economic agencies; quasi-governmental bodies; consultants, contractors, appointed commissions — the list goes on and on.

Nor could Madison have imagined or anticipated the evolution of government records from pen on parchment to electrons in hard drives and all the iterations in between.

Nor could he have imagined that lantern-lit meetings around rough-hewn tables eventually would become elaborate rituals with virtual variations — meetings by telephone, facsimile, video conferencing and e-mail.

But then, Madison didn't need to imagine all that. He and his fellow framers had the presence of mind to get the fundamental point right: a functioning and fair government depends on a free flow of information — from the government to the people as well as from the people to the government.

Interrupt that flow, constrict that flow, or divert that flow, and the basic compact between a government and its people is irreparably damaged and inevitably doomed.

That fundamental compact, of course, finds primary residence in the Bill of Rights.

Madison may have come later than others to a commitment to that instrument, but it was no less intense. In fact, the Bill of Rights reflected his belief in majority rule, tempered by minority rights that made the compact not just workable, but compassionate and just. And if the Bill of Rights was the contract, the First Amendment was the action clause, providing the solid intellectual footing for Madison's vision of representative government.

The principle of freedom of information is invoked in at least three components of the First Amendment: freedom of speech, freedom of the press, and the freedom to petition government for redress of grievances.

When the people are denied access, public officials are engaged in censorship dressed up in the rationales of political efficiency and convenience.

When journalists are denied access to information, the government in effect is exercising prior restraint, reducing news about political process and power to whatever public officials see fit to leak.

When citizens are denied access to government information, they are no longer on equal footing with their governors. Thus petition becomes more often than not an exercise in frustration and futility.

The tradition that pays just homage to James Madison and his constitutional legacy is that when it comes to political process and public discourse, speech is most powerfully free when it is most fully informed.

Paul McMasters may be contacted at pmcmasters@freedomforum.org.

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