A Jurisprudence to Grow the State

There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful  are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.

Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity.  It is much more hospitable to reinforcing  a state-centered view of the world than a religious school.

A second point of comparison is the hostility of left-liberals to the rights of corporations. That hostility was manifested, of course, in the reaction to the Citizens United case which protected the right of corporations to spend their own money to express their views in elections—one of the few decisions ever denounced in a State of the Union address. But this term, the same hostility is extended toward Hobby Lobby, a company that is defending its rights to engage in religious expression under the Religious Freedom Restoration Act.

The progressive hostility toward expressive rights of corporations, (except media corporations of course) reflects the recognition that corporations are a very important counterweight to the state. The corporate form allows citizens acting together to amplify their voice. As Alexis de Tocqueville saw almost two hundred years ago, the power of associations was one of the most important distinctions between America and statist France, because it energized decentralized forms of social ordering. Plus ca change plus c’est la meme chose: Protecting the power of corporations today, particularly nonprofit corporations, like Citizens United and religious schools, and closely held corporations, like Hobby Lobby, today maintains that difference,  sustaining a world in which a state exists within a dynamic private ordering rather one where private ordering exists at sufferance of the state.

The left-liberal view about corporations also provides a window into the deep structure of their position. Individual expression by ordinary citizens backed by substantial resources is very unlikely to block the unfolding of the left- liberal program of growing the state, which is backed by the new class (i.e. journalists, academia, and Hollywood’s), whose rights are protected by the faux neutrality of their own preferred jurisprudence. In contrast,  those who have substantial financial resources either individually or when joined with others or those with a religious faith that provides the inner resources for resistance can maintain the strongest opposition to the alliance of the state and the new class. Hence, it is hardly a surprise that a relentless impulse of left-liberal jurisprudence today is to eliminate the constitutional and statutory rights of their most effective opposition.