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 Toqueville 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.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. AndyK says

    I agree with this critique, but I wonder if Prof. McGinnis would have made the same argument during the foundation of our Republic. Because another form of sham neutrality is formal political equality in the voting context. This form of “neutrality” masked the consolidation of power of the monied classes as against those who historically had political authority. We might say that was a “good” sham, or we might say it wasn’t a sham because formal political equality is itself a good, but either argument would apply in this modern context as well.

  2. R Richard Schweitzer says

    Professor McGinnis is nibbling around the edges of a very broad topic. That is, the reorganization of societies in Western Civilization that has been ongoing for almost entirely the past 100 years.

    His observations involve consideration of the trends that have evolved in the “aggregation of interests;” particularly in the past 80 years in the United States. That 80 year period takes us back to an era when the global problem of Western Civilization, shared by all societies, was substantially the same as the greatest problem faced today, wide-scale unemployment, affecting masses of people, coupled with “under-employment” of those segments of the population previously producing surpluses that could sustain the extraordinary expansion of populations that occurred in the previous century.

    The changes that have occurred in the past century (particularly in the US) in the formation of objectives for, and methods of, aggregating interests deserve consideration; not just because of the obvious effects of those changes, but also with a view to direction of their trends and possible consequences.

    The aggregation of interests requires direction of the aggregate. This has given rise to the increasing predominance of the power, status, privileges and immunities of a “managerial class,” which has become essential in economic activities (in both the private enterprise and public domain) as well as crucial to the authority which has been ceded to The Administrative State in the quest for particular benefits or ameliorations of burdens on the part of identifiable particular aggregated interests.

    The Administrative State is directed by members of the “managerial class;” often erroneously referred to disparagingly as “bureaucrats.”

    The confrontations we are currently observing may arise in large part from the “competition” that is developing between the various strata of the “managerial class,” which may very well be in the process of becoming a “ruling” class, if they prove capable of satisfying or suppressing a large mass of the populations through solutions of the employment problems.

    Each of those segments of the emerging “managerial class” are facing significant challenges and dysfunctions. In the economic sectors, managerial motivations appear to have led to significant sequestration of surpluses rather than redeployment for innovation to attain increases in surpluses. In the Administrative State the competition of various and increasing numbers of particular aggregated interests, the limitations of resources, strains on the mechanisms (especially fiscal) of governments; and the difficulties of accessing the surpluses from the private sectors, generate “aggressive” motives for the managerial class in the Administrative State to displace many of the functions of the managerial class in the private sector.

    Thus, what appears to be a specific form of tremors on the surface of our society may very well represent deeper seismic activity.

  3. gabe says

    1) “In the economic sectors, managerial motivations appear to have led to significant sequestration of surpluses rather than redeployment for innovation to attain increases in surpluses.”

    2) “In the Administrative State the competition of various and increasing numbers of particular aggregated interests, the limitations of resources, strains on the mechanisms (especially fiscal) of governments; and the difficulties of accessing the surpluses from the private sectors, generate “aggressive” motives for the managerial class in the Administrative State to displace many of the functions of the managerial class in the private sector.”

    Perhaps statement #1 is true in order to avoid the pitfalls associated with statement #2.

    And yes, it is approaching seismic proportions.

  4. nobody.really says

    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.

    How, exactly, do corporations permit citizens to amplify their voices in a manner that partnerships do not? I can’t see any benefit of corporations cited in McGinnis’s essay that would not also be a benefit of any other voluntary association. In short, the arguments that we need to defend freedom of association is not sufficient to demonstrate a need to defend corporations.

    In case the point is lost on libertarians, what is a corporation? It’s a conspiracy between a corporate organizer and the state to enrich the organizer at the expense of EVERYONE ELSE by stripping EVERYONE ELSE of their right to sue the organizers under certain circumstances. That’s the meaning of “limited liability.” It’s a shift of risk, a transfer of wealth from the pockets of the public to the pockets of the organizers, executed without the consent of those being impoverished.

    Now, experience suggests that externalities generated by corporations benefit society generally – but not the injured individuals specifically. Thus, it does not surprise me that people who prize aggregate social benefits over individualism would praise the corporate form. But I’m often surprised at the people who actually praise it.

  5. R Richard Schweitzer says

    “How, exactly, do corporations permit citizens to amplify their voices in a manner that partnerships do not?”

    Perhaps the following may help explain why that is not the**real**issue. Let’s go back to the quotation:

    “. . . hostility toward expressive rights of corporations, (except media corporations of course) reflects the recognition that corporations are a very important counterweight to the state. ”

    Who determines the expressions made in the name in the interests of, or on behalf of – business enterprises, particularly those organized in corporate or representative form?

    The answer: the managers. In some cases the managers are owners. In larger enterprises the ownership is dispersed. In the case of partnerships (but not large-scale limited partnerships) critical ownership is vested in the managers.

    Who determines the policies and activities of the Administrative State to which “corporations are a very important counterweight?”

    The answer: the managers of the Administrative State. That “counterweight” consists of competition created by the expressions of the other sector of the managerial class that threatens or impedes the power, status, privileges and immunities of those who manage the Administrative State.

    As recently emphasized by the actions of various governmental agencies (IRS, FBI, DOJ, DHS, etc.) the efforts of the managers of the Administrative State do not exclude other forms of group or individual activities, including partnerships, that may constrain the rate of expansion and scope of the management of the Administrative State.

    This phenomenon is not limited to the US. It has its global counterparts throughout Western Civilization and its periphery.

    In a plausible ultimate scenario, the “managerial class” may resolve the competitions between those of the “private” sector and those of the “public” sector in such a fashion that a new “Ruling Class” that controls all ultimate determinations may come into being; possibly (probably) through use of the mechanisms of governments.

  6. gabe says

    “In a plausible ultimate scenario, the “managerial class” may resolve the competitions between those of the “private” sector and those of the “public” sector in such a fashion that a new “Ruling Class” that controls all ultimate determinations may come into being; possibly (probably) through use of the mechanisms of governments.”

    Precisely! In fact, this “co-operative” effort has gained renewed impetus under the current administration, although W and his predecessors also contributed to this practice. This is the modern day version of the “corporate state” and it may soon be fully upon us.

    That being said, it is frightening to view it in such an antiseptic manner. while admittedly, there is a cohesion and a self propelling impulse to any combination of resources, there is still the “human” element to consider. Ultimately, these decisions are made by both political and corporate actors / agents.
    To what extent is it possible to change the direction, or at least the momentum, of this phenomenon by changing the incentives of the individual actors.
    Without some hope to so change the actors incentives, it becomes truly alarming to consider a self propelled, self generating “corporatist impulse beyond the power, perhaps even the observation, of the citizenry to effect change.

    take care
    gabe

  7. nobody.really says

    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.

    There are striking parallels in how the libertarians 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, libertarians seek to eliminate financial limitations. What this “neutrality” ignores is that by enhancing the influence of some powerful citizens, it effectively diminishes the influence of all other groups. And it ignores the evidencethat, even under today’s regulatory climate, limits on financial contributions scarcely dent the power of wealth to influence public policy.

    • gabe says

      There is some truth in what you say, “even under today’s regulatory climate, limits on financial contributions scarcely dent the power of wealth to influence public policy.”

      but let’s get real here.
      The overwhelming preponderance of people DO NOT CONTRIBUTE or even SEEK to contribute to political capmpaigns.
      So, given that unhappy truth, should we then limit everyone’s ability to contribute as they see fit.
      As i have already noted, money has always been, and will always be, a part of political campaigns. Some will “contribute” more than others – so, too, some will choose to PARTICIPATE more than others and many will simply not participate at all.
      Given that there is an entrenched set of interests as Richard argues, either governmental seeking to expand its power and reach over the citizenry and its accompanying appendage media(s), ought there not to be a countervailing force. It is fine with me if this counterweight is Left or Right, as time and circumstance may require that one or the other exercise such a counterweight – but there should always be an opposing force. Many on the left, however, believe that the only legitimate voice should be that of Soros, Bloomberg, Steyer, and that thieving Zuckerberg. Of course they also believe that it is fair for Hollywood (oops, those are corporations) to promulgate its fractured fairy tale version of history and politics – but not fair for anyone on the right to do so.
      Let’s recognize that money will have its say. The more alternatives available the better.

      Of course, in a perfect world only individuals (not unions, not corporations, churches, etc etc.) could contribute – but it seems that you would not want that either. after all, someone with millions can “out-voice” you. So let’s just go your way and MANDATE that everyone MUST contribute an equal amount – nope, that won’t work either. How about the poor fellow who simply does not wish to be bothered. do we make him contribute just so that everyone, including him has an equal voice.
      Ultimately, it comes down to choice and conscience – contribute or not based upon your own preferences and to the extent that you see fit. This is after all what this nation was predicated upon.

      • nobody.really says

        Let’s recognize that money will have its say.

        So stipulated.

        So let’s just go your way and MANDATE that everyone MUST contribute an equal amount – nope, that won’t work either.

        Why not? Candidates could opt into a regime in which they forsake any “private” political contributions, but then become eligible to receive vouchers. Each registered voter would receive a publicly funded voucher of $X to be divided among the qualified candidates of the voter’s choosing.

        Sure, a voter could decline to participate; he’s bear no incremental cost either way. (Indeed, people who find the arrangement distasteful, or who didn’t want to be hounded by campaigns begging for donations, could put themselves on a public list announcing that they decline to participate and thus have no vouchers to contribute – with the subtext, “So bugger off.”)

        Yeah, we’d still face the problems of distinguishing between “hard money” (from vouchers) and “soft money” (money putatively not to, or coordinated with, a candidate’s campaign). And we’d face the perfectly legal, but unseemly, spectacle of racist/sexist/whateverist candidates racking up taxpayer dollars from vouchers. But I still think it would be a step in the right direction.

        • gabe says

          Ahhh! but then we would have the guvmnt determining who would qualify as a candidate and is thus eligible for funding – not unlike the situation where ‘pajama” journalists would not be protected by the 1st Amendment. (Of course, we could still use ads with Pajama Boy, if that suits your fancy).
          What is more, if the guvmnt doles out the money, who is to say that that is where I want the money to go – and why should it be done out of government coffers (read: the peoples money).
          What is more, I can see it now, there must be an affirmative balance between the representatives along the entire political spectrum.
          Oh this would make great paydays for lawyers and bureaucrats and the judges could then determine what is fair and “sensitive.” I think I will pass, thank you.

  8. R Richard Schweitzer says

    Be of good cheer!

    Managerialism and corporatism are not likely to last much more than half as long as it takes them to become established, and produce a “Ruling Class.”

    Management requires planning.
    Management requires capacity to measure.
    Measurement requires adequate information.

    To “Rule” (the possession of sovereignty) requires either popular passive acceptance or consent to the authority of that role.

    Thus, to “Rule” requires appropriate response to “public opinion,” which will be shaped by needs and desires and represented by aggregated interests.

    In planning, managers must calculate or estimate those elements to which there must be response. Therein lies the clue to what will likely lead broad sectors of the populations back to conditions of unmanaged, individual (if often common) determinations of the means of satisfying needs and wants.

  9. says

    Gentlemen, do not lose sight of what John expresses here.
    “Protecting the power of corporations today, (note the following;) 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 … 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 (above/added).“
    We may have our differences, John, but this is a very good essay blog. Thank you.
    Respectfully, John

  10. djf says

    Prof. McGinnis,

    I think you left out the word “not” in the second sentence of your last paragraph, before the phrase “by substantial resources.”

    Great essay.

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