Progressive Jurisprudence's Assault on Mediating Institutions

A disturbing aspect of the jurisprudence of justices on the left of the Supreme Court is their unwillingness to grant constitutional protections to mediating institutions. This hostility to mediating institutions—structures that help individuals join together to exercise power independent of the state—was demonstrated both in Citizens United and Hobby Lobby. In Citizens United, four justices would have prevented corporations from exercising the same First Amendment rights as individuals to express opinions before an election. In Hobby Lobby Justices Ginsburg and Sotomayor would have held that even closely held corporations could not obtain the protections of the Religious Freedom Restoration Act.

The measure of these justices’ hostility lies in their Houdini-like efforts to escape the established doctrine that supported the rights of corporations in these cases. The majority decision in Citizens United rested on the long First Amendment tradition of protecting the freedom of speech rights of corporations. For instance, New York Times v. Sullivan, offering a First Amendment shield against libel actions against public figures, involved a corporation.  Moreover, the history of commercial speech rights is almost entirely that of corporate rights. The majority in Hobby Lobby relied on the Dictionary Act, which expressly directs courts to include corporations within the definition of a person unless the context suggests otherwise.

In Citizens United, the dissenters justified their opposition to First Amendment corporate rights  on the basis that the corporate structure allows aggregations of wealth  unavailable to individuals. But that is the point of mediating institutions. The coercive power of the state is enormous. A single individual is limited in his ability to constrain the state or its officials. Most corporations that want to express political advocacy are not-for-profit enterprises representing people who combine to support a particular cause for which individual effort would be unavailing.

Justice Ginsburg’s arguments against the rights of even closely held religious corporations in Hobby Lobby are even more unsettling. There she draws a spurious dichotomy between not-for-profit and for-profit corporations in the context of religious expression.  According to Ginsburg, not-for-profits get protection because such “religious organizations exist to foster the interests of persons subscribing to the same religious faith. “ For Ginsburg, in contrast,  for-profit corporations are all about making money and providing employment.  But many, if not most, religious organizations help the needy of many faiths and run various institutions for the common good. And for-profit corporations are not required by law to seek only profit but can choose to sacrifice profit to the constraints of faith. If a Muslim partnership refused to lend at interest because of the faith of its partners, why would it change its practices if it incorporated to get the advantage of corporate limited liability?  The clear import of Ginsburg’s dissent is that religious beliefs may be protected only if they are kept within the confines of religious institutions, making them less likely to guide the daily lives of believers.

Sadly, this new assault against the rights of mediating institutions is not a bug but a feature of a left jurisprudence that aggrandizes the state. That jurisprudence may protect personal rights like those of sexual autonomy. It may protect collective rights, like that of the press, when they are exercised by institutions that as a whole lean sharply to the left. These kinds of rights are compatible with progressivism because they have posed little threat either to the growth of government or to the capacity of the state to displace traditional moral norms to facilitate that growth. But left jurisprudence will not grant rights sufficiently potent to constrain the state from dominating the economic and moral spheres of society.