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Cornell Law Review 88 (March 2003) 651-732Jonathan Turley:  PRESIDENTIAL PAPERS AND POPULAR GOVERNMENT: THE CONVERGENCE OF CONSTITUTIONAL AND PROPERTY THEORY IN CLAIMS OF OWNERSHIP AND CONTROL OFPRESIDENTIAL RECORDSSUMMARY:... " Madison's warning is particularly apt in the context of presidentialrecords. ... The Archivist also performs a sentinel function in protectingexecutive privilege. ...  In order to pass constitutional muster, the BushAdministration must establish that (1) executive privilege may be exercisedindefinitely by a former president; (2) the right to assert executive privilegemay be transferred to a third partly by a former president; (3) the right toassert executive privilege may be passed to an heir or designated party upondeath or disability; and (4) third parties may designate an individual or groupto assert executive privilege when a former president dies or suffers adisability without executing a prior designation. ...  It is difficult to tracethe origins of the theory that a former president can transfer executiveprivilege to a third party. ...  If the will had attached the transfer ofexecutive privilege authority to the transfer of presidential papers, six peoplewould have claim to its assertion. ...  The transfer of the authority to assertexecutive privilege by will or designation carries a faint notion of theoriginal proprietary theory of presidential papers. ...  However, this viewstemmed less from an executive privilege viewpoint than from a sense of personalownership in the Hegelian sense. ...[...]ConclusionWhen one considers the copious amounts of records and documents produced eachday in the federal government, it is hard to imagine that at the beginning ofthe Republic, the country had a reputation for the reckless disregard of recordsand documentation. Alexis de Tocqueville noted in his masterpiece, Democracy inAmerica, that:[In America, no one] bothers about what was done before his time. No methodis adopted; no archives are formed; no documents are brought together, even whenit would be easy to do so. When by chance someone has them, he is casual aboutpreserving them. Among my papers I have original documents given to me by publicofficials to answer some of my questions. American society seems to live fromday to day, like an army on active service. n459Today, the very suggestion that public officials give original documents inresponse to inquiries is enough to send the most stalwart archivist into a fetalposition. n460 Perhaps the most valuable of such documents are presidentialpapers. Although agencies generate important material in the execution ofpolicy, it is from presidential papers  [*731]  that historians can divine thegenesis of policy. n461 As the interest in these documents has increased, theirvalue as property has increased in proportion to that interest. Both historiansand heirs value these documents for what they reveal about the development ofpolicy and government actions. For some heirs, these documents serve as avaluable commodity to be sold to the highest bidder. For others, they offer away of controlling or suppressing historical reviews of an administration. n462Still others view the value of ownership as the right to destroy the papers topreserve a legacy. n463 Many heirs may have identified with the explanation ofPresident Harding's widow's decision to destroy his papers: "'We must be loyalto Wurr'n and preserve his memory.'" n464The recent controversy over the Bush order reveals not only the differentuses of this property, but the absence of a cohesive theory of ownership. In theshift toward a constitutional paradigm, conflicting utilitarian rationales forcontrol have muddled the debate over presidential papers. In fairness to theBush Administration, the conceptual basis for the exercise of either private orpublic ownership of presidential papers was mired in contradiction and ambiguitylong before  [*732]  its arrival. From the earliest dispute over Washington'spapers, there was a failure to address the basic claims of ownership of eitherthe public or private collectors. This Article attempts to offer some foundationfor that debate. Although certain provisions of the Bush order are faciallyunconstitutional, they highlight this confusion on a conceptual level that hasreigned in this area for over two hundred years. They also offer an intriguingmicrocosm to explore basic notions of ownership and how those notions changedfrom the eighteenth to the twenty-first century. With the maturation of theUnited States, Americans have come to cherish their historical legacy to anextent that might surprise someone like de Tocqueville. Americans now understandthat an archive is not some dead zone of boxed documents, but is part of anation's active search for self-meaning. These documents are part of an Americanlegacy that defines not only a prior administration, but also a people.Presidential records are the most vital form of jus publicum because they serveas the very gateway for the exploration of public policy - the only truemanifest destiny of a free people. 