The Constitutional Rights of Private Government

Abstract

This paper explores the theoretical justification for providing "private governments" with constitutional rights. Private governments are any private organizations or institutions (parents, churches, non-profits, unions, for-profit firms, etc.) that can use their control over property, membership, or employment to influence their members. The paper argues that conventional wisdom in constitutional theory regards constitutional rights as protections for individuals' self-regarding acts. Such a theory of rights is incapable of generating a persuasive justification for why private organizations should enjoy constitutional rights.

This paper argues that rights can better be understood in an "institutionalist" way, as allocations of governmental power to institutions that are, because of their internal structure, incentives, or culture, likely to exercise that power in ways appropriate for the social setting that they govern. The considerations that ought to define the rights of private governments (and, the paper maintains, rights more generally speaking) are identical to the "structural" considerations that determine whether and how to enforce constitutional principles like separation of powers and federalism. The critical consideration should be whether the private organization has the level of decentralization, democratic accountability, internal incentives, etc., that make it an appropriate government for its assigned area of social life. To illustrate how institutionalist reasoning might affect the way in which courts evaluate the constitutional rights of private government, the paper explores two recent U.S. Supreme Court decisions (Troxel v. Granville dealing with parental rights to control the upbringing of children) and Boy Scouts v. Dale (dealing with rights of private non-profit recreational clubs to control their membership).