“Local control” is not a panacea, and is not always consistent with constitutional design.
Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.
As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste. Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.
Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.
What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?
Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.
Consider the first sentence of Epstein’s essay, describing “the principle of freedom of association” as “a subset of the principle of freedom of contract.” That phrase anchors the piece, as Epstein emphasizes the identity of the goods of commercial relationships and transactions with all goods of association and the sense in which, in all associations, “the parties themselves determine whether they are gainers from the transactions in question.” Likewise for the harm of discrimination: both the value of association and the cost of exclusion are assessed entirely in market-oriented terms. Individual choices as to the most lucrative trading partners must not be overridden by the offended feelings and wounded amour-propre of those excluded by market factors.
Already we are put on uncomfortable footing. Association may be a subset of contract in certain utilitarian arrangements of the economic market and the business world. But many kinds of association are not obviously derived from contract. Indeed, they are not contractual at all. The associations of friendship, romantic love, family, religious community, and even conversation come to mind. Sometimes, associational structures like these can result in contractual arrangements (suggesting that the latter might be “a subset” of the former), while at other times there is no natural connection between association and contract. The highest form of friendship in Aristotle’s account is an association in which each member “loves the other for what he is” and which endures “so long as they remain good.” Friendship so conceived does not cease upon unilateral rescission when one party comes to estimate that he is no longer a “gainer.” “Friendship of this kind is permanent.”
Even political association is not inherently contractual. Indeed, politics, which is so bound up in traditional institutions and patterns of thought, so deeply veined with common habits and historical contingencies, would seem particularly ill-suited to contractualist reduction. We are in this country so accustomed to speaking of political association in social contractarian terms that it is easy to forget the classical view that politics is virtuous governance in accordance with the natural order.
In her excellent book on the transformation of conceptions of political obligation in 16th and 17th century England, Professor Victoria Kahn observes that even as late as “the Tudor and Stuart periods, the family was a far more common analogy for political order than was contract.” And yet, as Kahn explains, as the contractual analogy gained strength, it colonized the realms not only of politics but of religion, too:
In the course of the sixteenth century, developments in the law of economic contract also contributed to the ability to imagine a contracting political subject. . . . [I]n the late sixteenth century the legal jurisdiction of breach of contract shifted from the ecclesiastical courts to the common law courts. These changes registered a wider cultural crisis of faithfulness in early modern England. . . . The common law responded to these changes by arrogating to itself jurisdiction over breach of promise (formerly a matter for the ecclesiastical courts) and by placing greater emphasis on the intention of the contracting parties. Conscience itself thus came under secular jurisdiction and in the process was reconceived—at least for the purposes of legal disputes—in common law terms.
The metaphors of contract and market have become far more powerful in our own legal time and place. Some of the most forceful and widely embraced justifications for expansive First Amendment freedom have been pitched in classical liberal, contractarian, market-oriented terms. The titans of early 20th century First Amendment law—Oliver Wendell Holmes, Jr., Louis Brandeis, and others—refer to the rough and tumble of the market in ideas as the surest path to truth. The strongest arguments in the end win out by a kind of market filtration. Truth, including ethical and political truth, is approached fitfully but by steady advance in an unending progression of insight, critique, and correction. And it is the market and its perpetually evolving tastes that control the nature and progress of the new deal-making.
Likewise for religious freedom and religious association in America, which depend on what sociologist Grace Davie has called the “marketplace” model. Religious groups splinter to suit the changing desires of adherents and prospective adherents. They compete with one another in the way luxury apparel brands or cellphone carriers might, with the consumer selecting the religious association that best corresponds to his needs. The untrammeled freedom of individual choice-making and choice-changing is the primary object of legal protection because what is “true” depends not on the achievement and retention of a superior religious insight but on the process of choosing suitably in response to market circumstances and pressures.
Obviously the classical liberal legal model has had positive effects of various kinds. But it reflects and imprints a particular psychology of civic and moral virtue that may be contributing to its own present troubles. Many classical liberals have ignored these affective features of First Amendment law. Indeed, it is the invasion of the marketized, commercialized, contractualized conception of the First Amendment into almost every corner of the American psyche—including its appraisal of the worth of associations of all kinds, from marriage to parenthood, religious communion, and many others—that may breed the multiplying demands for antidiscrimination measures and account for the increasing debilitation of the freedoms protected by the First Amendment.
The classical liberal account of the freedom of association has not, as Epstein claims, resulted in the indiscriminate promotion of “ever more complex, voluntary arrangements.” It has resulted in the promotion of certain arrangements, and the demotion of others. And the values and dispositions it has instilled in the American populace are gradually eating away at the model itself.
What are the civic virtues promoted by the marketized, contractualized First Amendment? Elsewhere I have pursued this question more fully, but the very idea that hard-won truths are accorded no respect at all, no deference whatsoever, but are thrown right back into ceaseless competition with new ideas in “the market,” itself reflects a distinctive view of political and moral virtue. It either means that whatever ideas are accepted by the market are simply labeled “truth” or that truth has some sort of intrinsic advantage over falsehood that assures its prevailing under unfettered market conditions.
If the latter, then, as the late political theorist Walter Berns once observed, “persecution is illogical because it is unnecessary.” And if the former, the assumption must be that the only truths we have are relative and fleeting, since these are the only sort that can capture market preferences.
Much the same may be said of our conception of associations, in which friendship, loyalty, devotion, and even love, all take a back seat to market-driven choice-making. This is hardly the same as “keeping an open mind” to new ideas. Neither is it even the view that truth is best approached asymptotically. It is instead active disrespect for all existing truths. The idea of truth in such a society recedes into the background. Or perhaps it is more accurate to say that the only truth is the impermanence of any truth obtained and the relentless imperative of change at the prompting of individual choice and consumer taste. As Gerhart Niemeyer once observed:
It seems good and desirable to keep talking, while the result of the talk becomes something of secondary importance, a by-product which is destined to be discarded as soon as it has been obtained. In this way, the quest for truth is turned into an exciting game rather than a serious and exacting endeavor, a game in which, like the Caucus Race in “Alice [in Wonderland],” all are winners and receive the prize of official recognition.
“Recognition” is indeed an apt general description of the virtues toward which the classical liberal legal model, as implemented by the Supreme Court, reoriented the First Amendment during the 20th century. And in doing so, the Court exercised a vital instructional function as well.
It taught that there is no difference between disinterested ideas and self-interested ideas. It taught that all ideas are equal from a civic point of view—equally meritorious and equally deserving of recognition. It taught that the state’s function is to confer equal dignity on all ideas and the holders of them, for to discriminate among them is to offend against the deepest sources of individual self-worth. It taught that civic virtue and truth will emerge more readily from the clash of egotistical market concerns—partial concerns, that is, implicating the self’s recognition—than from rational debate among disinterested parties.
And it taught that the only real threat to the virtuous society is state power, and that the definition of justice is a market operating with minimal constraint. Within those limits, no choice is a bad one, all are equally good from the state’s perspective, and all equally “receive the prize of official recognition.”
As the freedom of recognition—the freedom of self-realization or self-actualization as influenced by the market—became the focus of First Amendment protection in the 20th century, two further effects followed that were perhaps unanticipated by classical liberals. First, concerns about coercion—of individuals and associations—gradually faded into the background. For if an individual and his associates are free just exactly to the extent that they have realized their true selves, then others may be in a better position to know what their authentic recognition demands.
Second, recognition in time required a good deal more than what the classical liberal had supposed. The affective, instructional power of law generated increasing demands for official recognition—for validation by the state. The government took it upon itself to confer dignity as one of the chief aims of antidiscrimination law. But because such official validation is a finite resource (rights require resources), and even at times a zero-sum game (to dignify some is to denigrate others), decisions had to be made about allocation. The state had to discriminate between interests truly worthy of recognition, or “dignitarian” treatment, and those that were not. It became necessary, in other words, to discern which interests accorded best with the newly marketized First Amendment. And the law obliged, doing what it always does: it gave direction; it taught, ordered, and ranked; it created hierarchies. And, indeed, just at the moment when the marketized First Amendment was taking root in American law, other plants of the same genus began to sprout up and flower alongside it.
In a fascinating study of the emergence of “sex as a civil liberty” in the United States, historian Leigh Ann Wheeler argues that the key to unlocking the vault of sexual liberties, subsequently enshrined by the Supreme Court in the Due Process and Equal Protection Clauses of the Fourteenth Amendment, was the American Civil Liberties Union’s series of “carefully crafted lawsuits” defending increased scope for sexual expression under the First Amendment. Wheeler details how champions of sexual liberties deployed the selfsame First Amendment “marketplace of ideas” metaphor to create consumer rights out of the First Amendment. Sexual expression was the First Amendment consumable, and it was increasingly regarded as a fundamental feature of individual identity and human dignity:
What the ACLU did, increasingly in partnership with commercial producers and other interest groups, was . . . designed to empower citizens to claim access to information and images as an individual right. As ACLU leaders and others reframed the First Amendment to include consumers’ rights, they abandoned, once and for all, their earlier commitment to defending only matter created for educational, political, artistic, or intellectual purposes and increasingly defended material produced purely for profit and pleasure.
Thus may we trace the constitutional protection of sexual practices that took flight in the 1960s, resulting in claims of the constitutional right to “reproductive freedoms” of various kinds and eventually to sexual equality, back to the enhanced protection of sexual expression under the First Amendment that preceded it. In the years since, the mutually reinforcing connection between conduct and expression persisted and expanded as “ACLU leaders increasingly supported the efforts of homosexual rights activists—along with purveyors and consumers of sexual material—to expand access.”
Who were the losers in this generational struggle? They included organized religious associations, especially Protestant and Catholic groups, whose core tenets reflected a very different ethic from that pressed by advocates of the individualist, consumer-oriented model of sexuality. They also included those citizens—religious or not—of a more communitarian disposition: those who believed that the political commonweal was ill-served by the expansion of sexual liberty and by the consumerization of the First Amendment.
But in time, such ideas were downgraded under law—they were demoted as civic ideals of virtue. Once the Court had been persuaded that the new marketized, consumerized ideals stood at the very core of American constitutionalism under the First and Fourteenth Amendments, resistance to such rights, even in the name of First Amendment freedom, gradually became anathema.
These developments complicate Professor Epstein’s claim that the classical liberal state is a neutral facilitator and promoter of decentralized, associational, cooperative freedom. It may perform this function tolerably well when the fundamental commitments of any given association line up with the market-centric premises undergirding the classical liberal model. But it does less well for those associations based on the loyalties of what Roger Scruton once called the partisans of the “corporate person.” The idea that “human individuals derive their personality,” including their commitments concerning human sexuality, “in part from corporations” (such as churches, families, social and civic groups, and other similar institutions whose function is to fix and transmit traditional ways of life), and that as a result “corporate personality should be consecrated in our feelings, and acknowledged in our law,” was gradually but steadily devalued in 20th century First and Fourteenth Amendment law.
American law consecrated something rather different, and what it consecrated explains, at least in part, today’s proliferating calls to restrict First Amendment freedom. Epstein criticizes at several points the unrest on university campuses—at Yale, Princeton, Cornell, Oberlin, and the University of Missouri, for example—in which students seek to punish what they perceive to be discriminatory and offensive speech. Since his writing, it seems that a number of Yale students have warmed to the idea of repealing the First Amendment.
These are, of course, comparatively minor episodes; and obviously not all students feel this way. But Epstein is right not to dismiss them. Demands for new constraints on the freedom of speech are pressed with increasing frequency and vigor. Demands for new constraints on the freedom of religion—particularly when that freedom stands athwart (let alone resists) the sacrosanct “dignitarian” and egalitarian achievements of the last century— are by now an established staple of the academic literature.
All of this is a reflection of the law’s power to teach. The views of the university students are the natural and predictable outgrowth of decisions like Christian Legal Society v. Martinez (2010), in which the Supreme Court held that a public law school could discriminate in the disbursement of funds set aside for student organizations against the local chapter of the Christian Legal Society because it did not “accept all comers” who desired a leadership role. This, the Court said, was hygienic instruction in “tolerance, cooperation, and learning among students.” All must receive the prize of official recognition and inclusion—all except associations like CLS. Today’s college kids have learned the lesson well. Epstein, to his credit, disagrees with the ruling in CLS v. Martinez but he misses that it was the psychological and affective underpinnings of the classical liberal legal model itself that may have helped give it to us.
Even the great 17th century, proto-liberal Whig champion, Algernon Sidney, once could report that
contracts in writing were invented only to bind villains, who having no law, justice, or truth, within themselves, would not keep their words, unless such testimonies were given as might compel them.
Perhaps classical liberals of an earlier period were more sensible of the affective power of law than are classical liberals today. Perhaps some classical liberals today are all too aware of the law’s power to shape civic dispositions and attitudes—and even applaud the curtailments of speech, and of religious and associational freedom, that have lately threatened.
Professor Epstein does not fall into either of these categories. He is a thoroughly committed and admirably principled libertarian. Would that such a position were possible.
 See Richard A. Epstein, “Public Accommodations Under the Civil Rights Act of 1964,” Stanford Law Review 66 (2014), 1241, 1290.
 Aristotle, Ethics, Book VIII (1156b2-23).
 Victoria Kahn, Wayward Contracts: The Crisis of Political Obligation in England, 1640-1674 (Princeton University Press, 2004), pp. 10, 42-43.
 Grace Davie, The Sociology of Religion: A Critical Agenda (Sage Publications, 2007), p. 12.
 See Marc. O. DeGirolami, Virtue, Freedom, and the First Amendment (Notre Dame Law Review, forthcoming).
 Walter Berns, The First Amendment and the Future of American Democracy (Basic Books, 1976), p. 154.
 Gerhart Niemeyer, “A Reappraisal of the Doctrine of Free Speech,” Thought: A Journal of Philosophy 25 (1950), 251, 255.
 Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford University Press, 2013), p. 5.
 How Sex Became a Civil Liberty, p. 153.
 Roger Scruton and John Finnis, “The Corporate Person,” Proceedings of the Aristotelian Society 63 (1989), 239.
 Algernon Sidney, Discourses Concerning Government, 3:17 (1698).