[Published as part of Constituting America's Ninety Day Study on America's Founding Principles - Principle of Duty of the American People to Continually Maintain Checks on Government Power – Constituting America]
On
November 19, 1863, President Abraham Lincoln spoke immortal words about the
eternal mission for all Americans: “that government of the people, by the
people, for the people, shall not perish from the earth”.
Citizens
holding government accountable begins with knowing what their government, at
all levels, is doing.
Two long
standing legal concepts provide the framework for citizens being eternally
vigilant and government officials being consistently accountable: government
documents should be public and government meetings should be public.
During
the Virginia Ratifying Convention for the U.S. Constitution, Patrick Henry
asserted public knowledge was the bulwark of protecting freedom, “The
liberties of a people never were, nor ever will be, secure, when the
transactions of their rulers may be concealed from them.”
“Where are your checks in
this government?…The most valuable end of government is the liberty of the
inhabitants. No possible advantages can compensate for the loss of this
privilege.”
Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:
"As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”
Madison raised concerns about those who aspire to unbridled power.
“The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies…it is the reason, alone, of the public, that ought to control and regulate the government.”
Public access to view the proceedings of House and Senate began in December 1795.
The
rapid growth of the Federal Government during President Franklin Roosevelt’s
“New Deal” raised concerns about public access to Executive Branch documents
and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to
create laws and regulations outside the reach of Congress. On June 11, 1946,
the Administrative Procedures Act (APA) was enacted to re-establish balance
between the Legislative and Executive Branches.
The APA also outlined how the public would be informed and allowed to
comment on Executive Branch actions:
1.
to require agencies to keep the public informed of their
organization, procedures and rules
2.
to provide for public participation in the rulemaking
process, for instance through public comment
3.
to establish uniform standards for the conduct of formal
rulemaking and adjudication
4. to define the scope of judicial review
The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, the Government in the Sunshine Act was enacted September 13, 1976. Similar “Sunshine Laws” were enacted among state and local governments. However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.
The practice of public
accessing public documents began on December 2, 1766, ten years before the American Revolution.
Sweden passed the “Freedom of the Press Act”. Among other things—it gave
Swedish citizens access to uncensored government documents. This was the first
“freedom of information” law in history.
The world's first law requiring "publicity for official
documents" was initiated by the Finnish-Swedish enlightenment thinker
Anders Chydenius, a member of the Swedish Diet (Parliament).
“No evidence should be needed that a certain freedom of
writing and printing is one of the strongest bulwarks of a free organization of
the state, as, without it, the estates would not have sufficient information
for the drafting of good laws, and those dispensing justice would not be
monitored, nor would the subjects know the requirements of the law, the limits
of the rights of government, and their responsibilities. Education and ethical
conduct would be crushed; coarseness in thought, speech, and manners would
prevail, and dimness would darken the entire sky of our freedom in a few
years.”
Chydenius’ Freedom of Print Act was
intended to vitalize political discussions. To achieve this objective, Chydenius
asserted it was essential that the citizens had access to official documents in
order to see how the state was run. Seven of the ordinance’s fifteen paragraphs
were dedicated to detailing this public access.
While
the Administrative Procedures Act mandated information access, it rarely
happened. Formalizing “Freedom of Information Access” for American citizens
took longer. The American Society of Newspaper Editors commissioned
Harold L. Cross, legal counsel for the New
York Herald Tribune, to investigate the issue of excessive
government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.
Cross
wrote that virtually every part of American government operated under what
amounted to an “official cult of secrecy”; that this secrecy had become “a
breeding ground for corruption; that it was leading to a rise in public
mistrust in government; and that all of these things combined were doing
serious damage to American democracy itself.” Cross 400-page report made the
case that Congress must craft new legislation that gave American citizens
greater access to the inner workings of their government. In the early
1950s, The People’s Right to Know became
a manual for the blossoming “freedom of information” movement.
In 1955,
former businessman John Moss (D-CA) began a 12-year effort to codify
Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).
On June
20, 1966, it passed the House of Representatives (306 to 0). It was then sent
on to President Lyndon Johnson.
Johnson
opposed the legislation but allowed it to become law on July 4, 1966.
On this 4th
of July we should celebrate this milestone in the public’s power to observe government decisions
and maintain checks on government power.
It reminds us that citizens must remain constantly vigilant to protect our
god given rights.
