Cornell Law Review, March 2003 v88 i3 p651(82)

Presidential papers and popular government: the convergence of constitutional and property theory in claims of ownership and control of presidential records. Jonathan Turley.

INTRODUCTION

I. A QUESTION OF OWNERSHIP: HISTORICAL EVOLUTION OF
PRESIDENTIAL PAPERS FROM PERSONAL TO PUBLIC
PROPERTY
A. The Historical Assertion and Consequences of
Personal Ownership of Presidential Papers
B. The Presidential Records Act and the Assertion of
Public Ownership over Presidential Papers
C. Executive Order 13,233 and the Reassertion of
Unilateral Executive Control over Presidential
Papers
II. THE PROPERTY PARADIGM: LOCKE'S LABOR THEORY AND
THE PRIVATE OWNERSHIP OF PRESIDENTIAL PAPERS
III. THE CONSTITUTIONAL PARADIGM: EXECUTIVE PRIVILEGE
AND THE STATUS OF FORMER PRESIDENTS IN THE
ASSERTION AND TRANSFER OF EXECUTIVE PRIVILEGE
A. The Executive Privilege and the Constitutional Basis
for Denial of Public Access to Presidential Papers
1. The Curious Constitutional Status of the Former
President
2. The Temporal Dimension to Executive Privilege
3. The Transferability of Executive Privilege to Third
Parties
B. The Convergence of Constitutional and Property
Theories in the Status of Presidential Papers as
"Constitutional Property"
IV. THE PROPERTY PARADIGM RECONSIDERED: THE PUBLIC
CLAIM TO OWNERSHIP OF PRESIDENTIAL PAPERS
A. The Property Basis for Public Ownership of
Presidential Records
B. The Alternative Rationales for the Retroactive
Application of Public Ownership over Pre-PRA
Presidential Records
1. Direct Public Acquisition
2. Involuntary Acquisition with Compensation
CONCLUSION

This Article addresses the long-standing dispute over the disclosure of presidential papers from historical, constitutional, and philosophical perspectives. Recently, President Bush rekindled this controversy by issuing an executive order that could significantly reduce public access to presidential records. Professor Jonathan Turley uses this controversy to reconsider some of the most fundamental questions of private versus public ownership of presidential papers, and argues that the roots of the ongoing controversy in this area can be found not in constitutional law but in property law. After offering a detailed account of how papers were transferred or bequeathed by presidents as far back as George Washington, Professor Turley argues that historical practice regarding the control of presidential papers reflects a distinctly Lockean and deontological view of property. Although new property concepts took hold in other areas, this view of private ownership remained dominant in the area of presidential papers well into the twentieth century. Professor Turley examines the basis for a proprietary theory of presidential papers under Lockean, Hegelian, and utilitarian perspectives. Ultimately, he concludes that none of these theories offers compelling support for the traditional view of private ownership of these records. After critiquing the Bush order and identifying serious constitutional flaws in its provisions, Professor Turley offers a new conceptual foundation for presidential papers as jus publicum, or inherently public property. As such, he argues, presidential papers currently held by heirs of former presidents should be subject to public protection or even public acquisition.