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STUNTZ'S EXAMPLES AMPLIFY his points. He complains that the Fourth and Fifth Amendments originally were used to bar government access to company financial records. Those decisions unfortunately were overturned. Otherwise, much of today's inefficient, expensive, and counterproductive regulatory state would be impossible.

In 1946 conservatives pushed through Congress the Administrative Procedure Act, to, in Stuntz's words, "rein in the executive agencies through which New Dealers regulated the economy, chiefly by making those agencies more open." Just imagine the terrible world we would live in if today's miasma of alphabet-soup bureaus and departments could act without formal rules or public scrutiny.

Indeed, he views transparency as "a tax on activist government." Put bluntly, micro-managing bureaucrats won't want to throw out zillions of new ideas if citizens are likely to see how crazy most of them are. So officials will choose status quo over new regulation.

The Harvard law professor also dislikes privacy because, seriously, he thinks it most helps rich people. Consider the Fourth Amendment. It "protects houses more than apartments, private spaces more than public ones, and passengers in cars more than those who ride buses and subways."

Indeed, it's worse than that. The Fourth and Fifth Amendments were drafted by discreditable people. Writes Stuntz: "Constitutional texts designed by rich slaveholders in the late eighteenth century -- texts used by rich corporations to protect laissez-faire economics in the late nineteenth century -- became, in the late twentieth century, the chief means of protecting black suspects from abusive white cops." Imagine the indignity!

Now, Stuntz says that he's not against privacy and transparency. In his view: "The best way to stop the nightmare [of leaks from Kenneth Starr's investigation of President Bill Clinton] from happening is to limit not what information officials can gather, but what they can do with the information they find."

It's a curious argument to make in a world in which most information, like that gathered by Ken Starr, is leaked as quickly as it is collected. Better to deal with "root causes" by barring the collection in the first place.

NO SURPRISE, STUNTZ'S ARTICLE stirred up a liberal hornet's nest. In his rebuttal to his critics, he pulled out the big guns. Today's privacy standards might have prevented creation of the income tax. (Oh, would that were only true!)

And, yes, privacy considerations probably would have prevented passage of the Civil Rights Act. There, that does it. If you're for privacy, your views would have left segregation in place. Egads!

Of course, the danger today is not that anyone is going to re-create the Jim Crow laws. Rather, it is the development and constant expansion of an extraordinary racial spoils system, which taints politics, education, and even social relations.

Stuntz concludes with a clarion call for dismantling roadblocks to hyper-activist government. He warns liberals: "Limits on government power that look wise when the other side holds the reins sometimes look foolish when your side is in charge."

And vice versa.

Stuntz makes some serious arguments and obviously neither privacy nor transparency can be treated as absolutes. Nevertheless, conservatives, especially those now in power, are far too careless and cavalier in dismissing the importance of both values.

Properly understood and deployed, the right to privacy (as well as government transparency) could be a powerful tool for limiting government. Conservatives should take note.

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