Constitutional legalism is no panacea, but it is the best we lawyers can do.
Mediating institutions are essential to democracy, as Tocqueville saw almost two hundred years ago. They offer an education in working with others toward common goals that makes for better citizens. They create a deeper structure of meaning and ideals than either politics or the market can often provide. They also furnish public goods in many cases more efficiently than the state. And finally they provide a framework of morality that it would be dangerous to allow the state either to formulate or enforce.
But many mediating institutions are in trouble today, beset by scandal from within and harassed by the state from without. There is more reason for optimism that they can overcome the scandals than the harassment.
Mediating institutions are unlikely to be engaged in more wrongdoing than in Tocqueville’s time, but the contemporary world makes scandals more public both because of social media and the decline of deference. Social media allows accusations to spread rapidly. A whispering campaign fast becomes a shout fest. And the decline of deference that Tocqueville himself predicted continues apace. The WASP elite has disappeared. But more importantly, the demand for an equality of standing which Tocqueville also foresaw as a consequence of democratization is stronger than ever. Trust is not presumed, but must be earned.
But the transparency demanded by modernity is not inherently destructive of the good that mediating institutions can do. Indeed, ultimately it can make them better. The sexual misconduct uncovered not only in the Catholic Church but among many evangelical churches made it more difficult for these religious institutions to instill the sexual ethics conducive to human flourishing. And such problems are emphatically not confined to religious institutions. Similar conduct has distorted the life of private boarding schools, like my own Phillips Exeter. These schools are themselves an important kind of mediating institution, particularly in instilling values that may be neglected by government schools.
Institutional reform is needed to make the leaders of these mediating institutions behave better. Structures that mandate transparency and accountability will reduce the agency costs of hierarchy that are the root of many of these scandals. Professor Robert Delahunty of St. Thomas Law School, for instance, has suggested that giving the laity a greater say in the selection and removal of bishops will bring more accountability. Professor Robert George of Princeton is absolutely correct that investigating the current allegations against the Catholic hierarchy, including the Pope himself, requires the involvement of the laity. Trustees of private schools can do more do to monitor the day to day operations of the faculty. And better institutional structures are needed to improve performance in areas other than sexuality. For instance, without close monitoring of stakeholders, like trustees, teachers and administers have often eroded the distinctive values with which many once fine educational institutions helped shape the next generation.
Separation of powers polices abuse in government by increasing monitoring. Similar structures, like balancing the laity against the clergy, can do the same for mediating institutions. And many of the same features of the modern world, like social media and the internet, that make transparency indispensable also make it easier to achieve.
In the next post, I will review the even greater threat to mediating institutions—government coercion.