The Recurring Paradox of Groups in the Liberal State
18 Pages Posted: 31 Jul 2009 Last revised: 9 Jun 2015
Date Written: July 9, 2010
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.
This Essay is part of a symposium on non-state action held at the University of Utah College of Law on February 6, 2009.
Keywords: family, group rights, groups, liberalism, privacy, religion, tax exemption
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