Some secrecy is necessary, but too often secrecy is used to hide illegality, embarrassment or conduct departing from American values. Contrary to conventional wisdom, however, these reasons do not explain by themselves why America’s mountains of classified documents grow ever higher. Human nature and bureaucratic incentives favor secrecy over openness. Secrecy is seductive. Beyond the timeless link between secrecy and power, secrecy limits challenges and risky questions. It fosters illusions of grandeur. Fear, awe, jealousy and lethargy all help cement a culture of secrecy.
Secrecy spawns more secrecy. The more information increases and secrets proliferate, the more professionals are tempted to use secrecy to get noticed. If you want your individual snowflake report to be read and not buried by avalanches of paper or blizzards of bytes, you better be sure it is classified and, indeed, escalate its classification to top secret or beyond. Secrecy’s seduction often blinds those with access to secrets to other valuable sources. Even though information from open sources (newspapers, magazines, TV, radio and the Internet) is often unique and valuable, many recipients of intelligence have no interest in such information, only wanting super-secret material from spies and intercepts. Moreover, secret is often conflated with true.
Escalating secrecy also adds to institutional prestige, explaining, for example, why CIA leaders fight fiercely to keep the President’s Daily Brief (PDB) super-secret. Prior to 9/11, the Bush Administration reduced PDB circulation to just six people, excluding the Attorney General, FBI Director, and White House counterterrorism chief. During the summer of 2001, these super-secret submissions to the White House contained many dire al Qaeda predictions that something “very, very, very big” was about to happen; “spectacular”; resulting in “numerous casualties.” Had the White House publically disclosed the gist of the top-secret threat warnings, it is likely lower-level government officials would have acted on information like the disturbing number of individuals of investigative interest attending aviation schools. Disclosure could also have led to more imaginative thinking about possible terrorist actions. White House disclosure of the warnings might well have averted 9/11.
by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School
“Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court. Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws. The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract). So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?
The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign. As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment. In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.
The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots. Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union. When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position. In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union. DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.
But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime. Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.
In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation. When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated. Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits. The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.
The Federalist Society – a network of more than 40,000 conservative and libertarian lawyers, academics, judges, policymakers, and journalists dedicated to reshaping the law – grew out of the frustrations of a small group of right-of-center law students who felt isolated in their left-of-center law schools in the 1980s. Inspired by the ideas and tenets of the Reagan Revolution raging outside the walls of their elite law schools, these first Federalist Society members were recruited to work as Special Assistants in the Reagan Justice Department where they heard two oft-repeated phrases: “ideas have consequences,” and “policy is people.” These two phrases would become the two main pillars of the Federalist Society as we know it today – as an organization that intellectually trains and socializes its members, exposing them to a distinctly conservative and libertarian way of thinking about the law and also encourages and facilitates opportunities for its members to put these ideas and principles into practice as lawyers, judges, etc. It is a simple formula, but one that has served them remarkably well over the past thirty years: ideas + people = policy consequences.
by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley
I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights. When asked at dinner parties, I volunteered that I taught criminal law and family law. When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation. Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.
It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice. As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction. The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.
My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015. Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice. As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook. Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.
We honor James Madison as the driving force behind the Bill of Rights. We recognize him as Thomas Jefferson’s indispensable political lieutenant. We applaud him as the nation’s fourth president. But we will never do Madison full justice until we revere him as a great poet.
Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan. Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty. His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.
Today, we hear only broken fragments of Madison’s music. Madison’s poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it. Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text. Consider the fate of the 45 words in Madison’s remarkable First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.