Informed Dissent: Toward a Constitutional Right to Know

Abstract

This article argues that the American judiciary should recognize a constitutional right of access to government information, or more forcefully a “right to know”, for purposes of achieving the self-government that was envisioned by the Founding Fathers. This in turn will subject political leaders to the “consent of the governed” that was also envisioned by the nation’s early theorists. While no such right is stated explicitly in the Constitution, a right to know is implied by Congressional investigative responsibilities that are delineated in the Constitution, particularly in Article II; the idea is also supported by numerous Supreme Court precedents on the rights of citizens to access information on government activities, either directly by request or indirectly via the press, which itself has important privileges and responsibilities granted by the First Amendment. A constitutional right to know has also been theorized by several influential First Amendment scholars. This article’s thesis builds upon the consent of the governed ideal advanced by philosopher John Locke, whose influence on the Founding Fathers is well documented. The consent of the governed requires access to information, thus leading to the informed consent that must be acknowledged by political leaders who operate under the oversight of the public. Furthermore, this article argues that informed consent can encourage informed dissent, or the ability of citizens to criticize unsatisfactory leaders and to call for change in the press and at the ballot box. In more precise terms, information leads to thought, which leads to the speech and expression that is protected by the First Amendment, which then leads to informed dissent, and finally to political action. This process, fueled by obtainable government-held information, enables the self-government that is at the heart of the American Constitution.