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.

Reader Discussion

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on July 16, 2014 at 16:05:03 pm

Yup, the state is coercive. McGinnis’s solution? Ensure that your employer can be just as coercive! That’ll stick it to The Man! Except my boss is The Man.

The relevant distinction here is between “normal” and “extraordinary.” Historically we had a legal concept known as “time of war/emergency.” Yes, the boundary between normal and extraordinary was often fuzzy (ask Mother Courage), but the need to have a boundary was not. Standard rules of civil rights, property rights, 4th Amend. right, habeas corpus would apply in normal times, but might be applied less stringently (or suspended altogether) under extraordinary circumstances such as war. But today we have open-ended declarations of “War on Terror” – with the effect that the extraordinary rules have become the de facto normal rules. Previously when a judge faced a question of individual vs. the state, the judge could render a statist decision to reflect a current state of war, reasonably confident that later judges would find ways to distinguish the ruling when peace returned. Today, the judge has no such confidence because we are in a perpetual state of war. So the judge may render a statist decision, knowing that future courts will not be able to distinguish the decision as a function of wartime jurisprudence because now all jurisprudence is wartime jurisprudence. Or the judge may render an individualist decision, even at the cost of hampering the state’s ability to manage a current emergency, because any other decision would effectively impair individual liberty forever. We’ve become like the color-coded Homeland Security warning system: A constant signal of “orange alert” is basically no signal at all.

Similarly, we have policies distinguishing between normal and extraordinary organizations. The boundary between ordinary and extraordinary has always been fuzzy, but the need to distinguish between them was not: Normal organizations must comply with the law and pay their taxes. We can afford to grant exceptions for extraordinary organizations because they are few and exceptional. Except that the category of extraordinary organizations is becoming so large, they’re increasingly ordinary. Soon, any organization with a CEO that chooses to profess an ideological preference will claim exemption from rules of general applicability – to the point where organizations subject to rules of general applicability will be the extraordinary ones. Equal Protection jurisprudence will fade to irrelevance because no one can be deemed similarly situated to anyone else anymore; everyone is in his or her own special category, a “law unto himself” as Scalia warned in Employment Div. v. Smith.

The question is, where do we draw the line? True enough, federal statue clearly defines a corporation as a person, and McGuinnis sneers at justices that fail to see that. But will McGinnis similarly sneer when the justices try to limit their holding to closely-held corporations, when the statute clearly imposes no such limits? Ginsburg values clear, unambiguous standards because they help keep the courts from becoming the arbiters of “specialness” and defend Equal Protection. But the majority justices gleefully run where angels fear to tread. So prepare for a flood of standard-less line-drawing, ever the hallmark of church/state jurisprudence.

In the final round, courts may eventually conclude that “yes, you are special – just like everyone else,” and thus nobody will be deemed more worthy to be exempt from rules of general applicability than anyone else. That would be an ironic fate for our much-loved and much-hated mediating institutions.

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on July 16, 2014 at 16:52:35 pm

Consider a mediating institution in Israel: ultra-Orthodox seminary students. They claimed that military service would offend their beliefs. Sure, lots of people wanted to evade military service, but hey – there are only 400 of these seminary students, so why not give’m a pass?

That was the decision in 1948. Some things have remained constant over the years: ultra-Orthodox seminary students still oppose military service. But one thing has changed: today, ultra-Orthodox seminary students represent 10% of Israel’s population. Most ultra-Orthodox men are unemployed because of their religious studies, and thus must rely on donations, state benefits and their wives' wages.

And now public opinion has turned, not because orthodoxy has changes – it emphatically has not – but because the status of being ultra-Orthodox has ceased to be special and has become normal. The society that was happy to grant exemptions to extraordinary groups is not happy to bear the burden of granting exemptions for ordinary groups. In 2012 the Israeli Supreme Court held that exemptions for seminary students violated the state’s equal protection policies. And this year the Knesset repealed the military exemption.

So, there we have it: As society recognized the “specialness” of an ever-larger share of the population, the net effect was to eliminate social recognition of “specialness.” Social willingness to grant exceptions to the rules of general applicability depends on the circumstances truly being exceptional. By tearing down the wall between normal and extraordinary, you don’t let more institutions become extraordinary; instead, you render all institutions ordinary.

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on July 16, 2014 at 16:55:07 pm

"What will it cost me to have a bowl of your soup?”

“Five farthings.”

“How ‘bout this: I’ll give you a farthing for every bubble of fat I see.”

“Agreed!” And as the cook finished the soup, he added ever more fat, hoping to make a killing.

And he made a killing – of his good luck. The first additions caused more bubbles to appear. But with each successive addition, the bubbles stopped growing in number and started growing in size. By the time the soup was done, the bubbles had all joined together, creating a thin layer of fat over the surface of the bowl -- one giant bubble.

Moral: The shape of supply and demand curves matter. Having something valuable and scarce may make society rich. Paradoxically, acquiring more of that thing may render it less scarce and less valuable, thereby rendering society poorer. Or, more succinctly, more is not always better.

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on July 16, 2014 at 19:09:24 pm

"As society recognized the “specialness” of an ever-larger share of the population, the net effect was to eliminate social recognition of “specialness.” Social willingness to grant exceptions to the rules of general applicability depends on the circumstances truly being exceptional."

By extension, this logic will eliminate any consideration for religious practice BECAUSE there are so many of them and they are no longer special.
Let's not confuse the effects of "juris-lational" conflation of basic rights (protected under the US const,) with those "gee, it would be nice if ever one were happy" rights that the Black Robes have called into existence (sui judgeris, if you will) with what was ordinary back in ordinary times.

BTW: In the past, being new to all this blogging silliness, I was taken aback by some commenters asserting a distinct affinity between liberal progressives and libertarians; however, after reading some of your pieces (well stated as they are) I have come to see the validity of their assertions. This is not to be critical but only to recognize the "insight" it has provided me.
And no soup for you - but I suspect this is something for which you would be thankful while saving a couple of farthings!

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on July 16, 2014 at 23:39:04 pm

I find this unpersuasive for many reasons. First, unless I misunderstand nobody.really, Professor McGinnis, or more likely, both, I think the comment is only tangentially related to the original post. Secondly, I do not buy the premise that corporations under either Citizen's United or Hobby Lobby are coercing anyone. A corporation that does not pay for 4 of 20 or so types of birth control is not coercing its employees any more than I am coercing my neighbor by not paying for his snow removal. Third, the "sticking it the man" construction is a non-sequitur. No one need be sticking anything to anyone except in the context of a bad pun. Fourth, the "normal" and "extraordinary" distinction seems almost tautological: normal is normal unless something else is considered normal. I see no compelling reason to apply this distinction to only the institutions involved and not the actions that affect them. It seems just as valid to argue that respecting religious beliefs when promulgating agency regulations is the "normal," and the actions of Secretary Sebellius in imposing the contraceptive mandate the "extraordinary." The greater danger lies whenever any right is burdened by non-essential government intrusion and this is considered "normal."

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.