How to Get Around the Individualism Roadblock With a Minor Turn in Jurisprudential Policy
By James C. Ure, Esq.
The National Platform of the Libertarian Party[i] defends the view that “all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose.” The platform opposes any regulation of obscenity, including pornography, “despite claims that it instigates rape or assault, or demeans and slanders women,” as well as any speech codes at tax-funded schools, claiming that “[l]anguage that is deemed offensive to certain groups is not a cause for legal action.” It opposes eminent domain, zoning laws, building codes, property taxes, resource management, public health legislation, and all regulation of abortion. Finally, it holds that “consenting adults should be free to choose their own sexual practices and personal relationships” and that the state does not have the authority to define the terms of marriage because marriage is simply a private contract.
Tellingly, the word individual appears fifteen times in the first twenty sentences in the platform, but the words family and school only appear once each, the words church or religion only appear a few times, and the words community and neighborhood do not appear at all. Clearly, in libertarian thought, “respect for individuals, apart from family and other associations, is paramount to a just and virtuous society.”[ii]
This individualistic view of society is spreading through our government and our homes like wildfire. It has already caused a steep decline in national unity and promises to continue tearing societal fabric apart until nothing but individual, atomistic, autonomous shreds remain. Although there are many causes at the root of this individualism, I will only treat one in this article: the harm modern Supreme Court jurisprudence has inflicted on various societal associations that have previously been sources of societal unity.
This article explains how the current U.S. Supreme Court’s extraordinary emphasis on individual rights perpetuates a national sense of individualism. It then sets out the current method the Court uses to protect individual rights and shows how this method corrodes the influence of unity-creating institutions often referred to as mediating entities. It concludes by encouraging jurists and scholars to consider a simple shift in jurisprudential policy that would counteract these individualistic trends by revitalizing our mediating entities. The article ends by suggesting one important reason we can have faith in our future even if the libertarian fire continues to spread.
To begin, first consider the Court’s current method of interpreting the Constitution when it comes to a person’s rights. When the State passes legislation that infringes on an individual’s rights—for example, a law that prohibits an individual from creating pornography—the Court simply balances the importance of the individual’s right against the state’s need to restrict that right, in this case the need to restrict pornography. The amount of scrutiny a court will use when analyzing how much weight to give the individual’s right depends on the type of right in question. If the right in question is one the court has deemed “fundamental,” such as the individual’s right to marry, procreate, care for her children, have an abortion, or vote, the court will use a high-level degree of scrutiny, called strict scrutiny, and the court will apply strict standards which are likely to find the law unconstitutional. However, if the right in question has not been deemed “fundamental,” such as the individual’s right to hunt, fish, drive a car, or declare bankruptcy, the court will use a lower degree of scrutiny and the law will be upheld as long as the state can provide a rational reason for passing the law. In the case of pornography, the Court has decided that a person has a fundamental free-speech right to create most types of pornography so laws restricting its creation are likely to be struck down.
Why is this method of Constitutional interpretation, which accords so well with the spirit of the Libertarian Platform, overly individualistic? Because while the Court correctly holds the individual’s rights in high esteem, it regularly fails to consider the implications that upholding a given individual’s rights in a particular instance will have on other individuals. What about the effect this decision may have on families? schools? churches? neighborhoods? These entities—often called mediating entities—are essential to a free society and merit more consideration in political platforms and Supreme Court jurisprudence. These entities are the source of unity in free societies and play a unique and essential role.
So what are mediating entities and why are they essential to a free society? The word mediate comes from the Latin mediare, which means “to be in the middle.” A mediator is one who stands in the middle of a dispute to help the parties find a common-ground resolution to the conflict. We are familiar with this role of mediators in personal matters in our society but we have largely forgotten the role of institutional mediating entities that can help provide common-ground resolutions to the inherent and seemingly eternal conflict between the private and public spheres, between the lone individual and the looming state. The private sphere is where meaning, fulfillment, and personal identity are to be realized for each individual and is most commonly understood in the context of family life.[iii] The public sphere is where compromise and conformity to public norms require the sacrifice of individuality so society can function. Standing between the lone individual in the private sphere and the looming mega-structure of national government in the public sphere are what Edmund Burke refers to as “little platoons” such as families, churches, neighborhoods, schools and other voluntary associations that provide intermediary bubbles in which individuality is enhanced while at the same time intermixed with state notions of compromise and commonality.
Consider the family. The family is the bubble in which a child first learns what makes him unique and where he feels safe enough to explore his individuality. It is also the first place a child learns to make personal sacrifices for the good of the whole. In the family, it is natural for a parent to expose a child to various activities or ideas to determine what unique interests the child may have and to give the child an enhanced sense of self. It is also natural for a parent to ask a child to sacrifice personal interests to benefit the family, such as to provide help with cooking or cleaning. In the end, this is not very different from what makes free societies tick. Just as the family will provide protection for a child to develop his individuality but will ask the child to make personal sacrifices for the good of the whole family, the state will protect an individual from outside threats, but will also require personal sacrifice of each citizen at times, whether in the form of taxes, jury duty, or military service. For this reason, the family is the fundamental mediating unit that stands between the individual and the state in society. It is in the family that children are expected to learn the core values and beliefs that democratic institutions later draw on to perpetuate themselves.[iv]
Another important mediating entity is the public school. In the traditional sense, public schools derive their authority from both parents and the state.[v] Public schools derive their authority from the state because they were created by and may be terminated by the state. This gives the state some leverage regarding curriculum and policies. However, schools also derive their authority from parents because parents have a fundamental right to educate their children, and public schools only hold that right when delegated to them by parents. Even under modern Supreme Court jurisprudence, unsatisfied parents are always free to withdraw their children and enroll them in private schools or educate them at home. Because of this right, parents also have some leverage regarding curriculum and policies. The hybrid character of the source of authority places schools in an interactive relationship with both the private family sphere and the public governmental sphere.[vi] The public school should not be a place that imposes the state’s cookie-cutter sense of meaning on all students; but nor should it be a place that must conform in all respects to how a small group of parents in a given locale think it should be. Instead, the school has traditionally been a mediating entity that has forced parents and the state to come together and create an atmosphere in which students may be instilled with values and morality on behalf of the family and with a sense of community and socialization on behalf of the state. While schools today have essentially become nothing but an arm of the state, causing many parents to seek alternate educational models for their children, it is important that parents remember the higher function public schools should be performing so they can recognize and support appropriate public school legislation.
Neighborhoods, churches, and other voluntary associations also form an important part of the fabric that holds a democratic society together. These entities allow individuality and pluralism on a broader level because an individual's involvement in her neighborhood, church, scout troop, rotary club, sports team, or other organizations at once enhances her individuality and increases her shared sense of community. These are also important platoons that mediate between the individual and the state.
These mediating entities are the glue that holds society together. For Tocqueville, the “intellectual and moral associations” provided by these mediating entities were so important that “nothing . . . more deserve[d] attention.”[vii] How then did we get to the point in modern Constitutional jurisprudence that the individual’s right to “privacy” and “autonomy” is turning familial ties into mere contracts that can be severed by either party at any time regardless of the impact on the children or society? How is it that the individual child’s right to “free speech” requires public schools to abandon children to themselves when it comes to virtue and morality? How is it that the individual’s free-speech right also trumps the rights of families and communities to regulate materials such as pornography that destroy the fabric holding families and communities together?
These questions are not just rhetorical—there is a historical answer. The idea that certain individual rights should trump the interests of entities such as families, neighborhoods, communities, schools, churches, or states took root in the United States Supreme Court jurisprudence when a “compromise” took place during the New Deal era. Prior to the New Deal, individual rights were generally protected by the very structure of government itself through federalism, separation of powers, checks and balances, the Tenth Amendment (which states that whatever powers are not specifically delegated to the federal government are reserved to the states and the people thereof) and other architectural mechanisms that limited government’s ability to infringe on individual rights. However, the black codes and Jim Crow laws created by southern states preceding and continuing through the Civil War era seriously infringed on the rights of individuals of the black race, which sparked national doubt about whether states would actually protect individual rights. It was during this time period that the Supreme Court began carving a new role for itself as the watchdog that protected against state infringement on individual rights, a role that was made permanent during the New Deal era. During the New Deal era, Roosevelt proposed legislation that required a powerful and activist central government to combat the economic problems of the Great Depression. One major problem the legislation posed to the court, though, was that such a centralized government would hamper the structural mechanisms designed to protect individual rights such as federalism and the Tenth Amendment. So the Supreme Court compromised.[viii] To compensate for the blow to the structural protections of individual rights suffered during the Civil War era and especially the New Deal era, the court as early as 1937 began assuming a new “preferred-freedoms” approach that called for heightened constitutional protection of select individual rights that were, in the opinion of the Court, “so rooted in the traditions and conscience of our people as to be ranked as fundamental”—and the Court’s role as protector of these rights became permanent.[ix] The court supplanted structural protection with that afforded by judicial watch care. In short, the Court’s extraordinary emphasis on individual rights since 1937 is an attempt to compensate for the injury the Court itself inflicted to individual rights by demolishing their institutional safeguards during the New Deal era.
This compromise has had far-reaching effects on national unity. This compromise adversely impacted not only protections such as federalism and separation of powers, but it seriously wounded mediating entities as well. The preferred individual rights are often protected at the expense of families, churches, schools, neighborhoods, and other voluntary associations. Because mediating entities are a primary source of national unity, when mediating entities suffer, the nation suffers.
But there is hope. Some of the institutional safeguards compromised away, such as federalism and the Tenth Amendment, are making a comeback in modern Supreme Court jurisprudence. Supreme Court decisions over the last decade have again invoked the previously-dormant Tenth Amendment. Some scholars argue that the “Federalism Revolution” has begun. As the Supreme Court restores these safeguards it will have less need to police individual rights, at least theoretically, which will free the Court to use an approach to Constitutional interpretation that again relies on state constitutions and legislation to protect individual rights. However, while a federalism trend is definitely apparent, the decisions thus far lack any real strength and many scholars agree that a return to the traditional state-sovereignty form of federalism is not likely. This leaves many proponents of federalism feeling doubtful and helpless. My purpose in this essay is to propose that instead of pushing an unlikely return to state-sovereignty federalism or giving up altogether, we should advocate a new form of federalism. We can use the momentum many jurists and scholars are creating for state-sovereignty federalism and channel it to a form that has a good chance of success and that will create many of the same benefits to society as the old form. This new form is mediating-entity federalism. While we may not be successful at re-empowering states, we have a great opportunity to re-empower families, churches, schools, communities, and neighborhoods. For instance, we can remove public school legislation like “No Child Left Behind” and let parents and teachers re-forge a relationship that requires give and take and demands excellence on both sides; we can say that parents truly have the ultimate say in a child’s education—and show that we mean it through well drafted school voucher programs or tuition tax credits; we can allow communities to regulate societal forces they may deem destructive such as pornography, abortion clinics, tobacco, or alcohol instead of being subject to the moral or political whims of an individual or minority view.
By re-empowering mediating entities, we will counteract the trend towards individualism. Tocqueville says that all democratic societies where equality is valued have a tendency towards destructive individualism. But he explains how Americans of the 18th and 19th centuries combated “the tendency of equality [in democracies] to keep men asunder” by “free institutions.” By free institutions, he means both government and civil associations, and he explains why they bring unity:
The political associations that exist in the Unites States are only a single feature in the midst of the immense assemblage of associations in that country. Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools.”[x]
Why are these associations important? Because through them, “[f]eelings and opinions are recruited, the heart is enlarged, and the human mind is developed. . . . I have shown that these influences are almost null in democratic countries; they must therefore be artificially created, and this can only be accomplished by associations.” After all, societal unity is created “only by the reciprocal influence of men upon one another.”[xi] These associations bring men together, bring men out of their individualism and give them incentive to combine with others in various contexts, thereby strengthening the fabric of society. If mediating entities are empowered, national unity will increase. This New Federalism is the best legal remedy for Supreme Court individualism.
Thus far, I have proposed a specific solution to a specific problem. This trend towards federalism, and the opportunity it provides jurists and scholars to empower mediating entities gives me hope for a unified America. But I conclude by sharing why there is a greater hope for these mediating entities and the future of our society than a potential shift in the Supreme Court’s jurisprudence. There is hope for the future of our families, schools, neighborhoods, churches and political institutions because of a growing number of family-oriented, community-minded people who are raising their children to be leaders.
These future leaders will know how to create unity in an extraordinarily individualistic society because they are now experiencing unity in their homes.
They will know how to make personal sacrifices for the benefit of their communities because they are being asked to make sacrifices for their families right now.
They will deal with the complexities of a pluralistic society by finding the strengths of diverse cultures, ethnicities, religions, and backgrounds because they are reading about the great men and women from these cultures, ethnicities, religions and backgrounds right now.
They will understand good forms of government because theories of government are part of their studies; and they will implement these forms because they are now living under well-implemented forms of good family governance.
They will demand more from their political parties because they are demanding more from their study groups, scout troops, and religious organizations right now.
They will want to protect our educational institutions, neighborhoods, churches and communities because they are invested and involved in these groups right now.
Because they are now learning to find balance in life despite powerful and diverse external pressures, they will bring balance to society in the future.
They will be inspiring because they have been inspired, hopeful because they have grown up with faith, and they will know their limits because they have been pushed to them.
Regardless of whether the New Federalism takes hold, these future leaders will be the glue that holds society together. Their involvement will compensate for the general sense of national complacency and selfishness. Maybe some of these future leaders are in your very home—or maybe you yourself are one of these leaders.
James Ure is a full-time faculty member of George Wythe College. He received his B.A. in English from Brigham Young University and graduated magna cum laude from South Texas College of Law. He and his wife, Angela, have two children.
[i] National Platform of the Libertarian Party, Statement of Principles. Available at http://www.lp.org/issues/printer_platform_all.shtml.
[ii] See, e.g., Accountability Utah: Why the Individual is the Fundamental Unit of a Just Society.
[iii] Hafen, Schools, 696.
[iv] Hafen, marriage, 480.
[v] As a side note, conservatives often argue that schools derive all of their authority from parents because the state derives its power from its citizens, who are parents. While this is true, the state must exercise the power delegated to it in the best interest of society even when society’s interests are at odds with those of particular parents in a given situation. So it becomes necessary to consider the state as a separate entity with independent interests.
[vi] Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as Mediating Structures, 48 Ohio State Law Journal 663, 700.
[vii] Alexis de Tocqueville, Democracy in America, Volume II (Vintage Classics), 517.
[viii] In 1937 President Roosevelt sent a bill to Congress that would authorize him to appoint one new Supreme Court justice for each sitting justice who had served ten years or more and had not retired within six months after his seventieth birthday in an effort to “pack the court.” Whether the Court was influenced by this bill and its likely passage is not known for sure, but soon thereafter the Court began upholding New Deal legislation of the kind that had previously been struck down on Tenth Amendment grounds. This is the famous “switch in time that saved nine.” Garry, 862.
[ix] Palko v. Connecticut, 302 U.S. 319, 325 (1937).
[x] Tocqueville, 106.
[xi] Id., 108-09