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Thursday, August 06, 2009

Gedicks on Group Rights

Via Larry Solum, I see that Fred Gedicks of BYU has posted an interesting new paper on SSRN called The Recurring Paradox of Groups in the Liberal State.  It's an interesting read for those of us, including Rick and I, who have written on questions involving group rights, First Amendment institutionalism, religious group autonomy, and so on.  Here's the abstract:

The question of groups for liberal theory and constitutional doctrine is not new. For at least the last half century, every time some unguarded Supreme Court language has hinted at group rights, academics have responded with law review articles arguing that the Court should confirm such rights in doctrine. But the Court never has.

The Court's lack of enthusiasm for group rights is undoubtedly related to their paradoxical quality of simultaneously protecting and threatening individual liberty. This paradox requires analytic touchstones to guide the decision when the liberal state should intervene in the internal affairs of groups, such as groups’ lack of foundational status in constitutional doctrine, whether group membership is consensual, and the extent to which group rights impose external costs on nonmembers. It also suggests the need for a more nuanced approach to group rights than is suggested by the binary choice between recognition or nonrecognition. Constitutional doctrine might make greater use of intermediate measures, such as revocation of tax exempt status or other state privileges, for groups whose beliefs and practices threaten the rights and interests of nonmembers. This enables the state to preserve the pluralist contributions that groups make to liberal democracy without subsidizing anti-liberal values and practices.

And here's a nice passage: "Thus began the long and unrequited love affair between legal academics and constitutional theories of group rights.  Since Kedroff, every time some unguarded Supreme Court language has hinted at the existence of group rights, academics have responded with law review articles arguing that the Court could or should or might or must confirm such rights in doctrine.  But the Court never has.  This has been going on for more than 50 years and we're now no closer to a constitutional doctrine of group rights than we were when Professor Howe wrote in 1953."

True.  But hope springs eternal!  Two small points.  First, don't miss Gedicks' description of his experience at a SALT conference discussing polygamy, which I found very interesting.  Second, one of the reasons Gedicks is cooler on group rights than he once was, he says, is that "[t]he toleration of illiberal groups is fraught with danger for liberal democracy, which by definition cannot guarantee that such groups will not seize the reigns of democratic power."  It seems to me that this point is just an illustration of the broader Madisonian point about the potential danger of factions.  And part of the response to this is the (actual or neo-) Madisonian solution of federalism and an extended republic.  Given both the dispersal of democratic power and the limitations on local power, and the possibility of both geographical/jurisdictional and group exit rights, I think this concern is not as great as Gedicks might suggest.  Any discussion of group rights must, in the United States, also acknowledge and account for federalism and localism, I think.  

Read the paper!

Posted by Paul Horwitz on August 6, 2009 at 01:34 PM in Paul Horwitz | Permalink


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