ABSTRACT

In the constitutional democracy that is the United States, the people are expected to hold their representatives in the legislative and executive branches accountable through the electoral process. The trajectory of judicial decision-making in the last half-century, in other words, has led to more privacy for the government, and less for the citizenry. This chapter reviews both litigation arcs, beginning with the government’s efforts to keep close what it regards as national security secrets, then moving on to the issue of individual privacy. It discusses the potential consequences of these developments, as well as the ability of the judiciary to ensure that conditions necessary for constitutional democracy are not irretrievably diminished. To support reducing the levels of both government transparency and individual privacy requires a belief that government leaders, and particularly executive branch officials, will inevitably act honorably, in the best interests of the nation.