Honoring Madison’s constitutional legacy

Monday, March 22, 1999

James Madison...
James Madison

On the map, the road wending through Virginia’s beautiful Piedmont region is Highway 20. On the markers alongside the road, however, it is “The Constitution Route.” You soon discover why as Highway 20 deposits you at Montpelier Station just south of Orange and a shuttle takes you through an iron gate, past a horse-race track and onto the 2,700 acres surrounding Montpelier, the home of 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

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

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

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

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

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.