Further to my weekend Readings post noting David Cole’s new SSRN paper, David dropped me a note, which I’m delighted to put up below. I think David is right in these comments; knowing he’s expanding this into a book, I thought a more extensive note on the article than we usually do for “Readings” might be useful to him. Thanks to David for giving this to us:
My thanks to Ken Anderson for a very thoughtful reading of my article, “Where Liberty Lies: Civil Society and Individual Rights after 9/11.” Ken raises many important questions, many of which I hope to explore in the course of my forthcoming book on this subject. But a couple of clarifications may be in order.
First, I don’t claim that civil society consists only of “non-governmental organizations I like,” as Ken puts it (his scare quotes, not mine). I acknowledge that civil society includes a wide range of actors, including the media, religious institutions, and the like. My focus for this piece was on non-governmental organizations committed to individual rights, but even that category includes such groups as the National Rifle Association, right-to-life groups, and conservative public interest organizations advancing rights of property to limit government regulation of business and the environment.
Second, I do not claim that civil society organizations always lead us to the “right” result as a normative matter (however one might define “right”). My point is instead that the work of constitutionalism – including defining, expanding, contracting, and enforcing rights – takes place not only in courts, and not only within the formal structures of government, but in the informal engagement of citizens gathered together in associations committed to constitutional principles. That observation, I suggest in the piece, has important implications for constitutional theory, doctrine, and practice.
Finally, Anderson raises an important point about the dangers of corporatism. I don’t think that groups like the ACLU, Human Rights Watch, or the Bill of Rights Defense Committee pose any real risk of transplanting or displacing proper democratic processes. The only way they can realistically succeed is by persuasion, and by working in parallel with the structures of democratic governance. That said, I do think they can play an important mediating role, in this sense: Constitutional rights are enshrined in the Constitution precisely because we think the majoritarian political process is unlikely to protect them adequately. Civil society groups committed to those rights, precisely because of their lived, shared commitment, can help keep us honest when we are most tempted to dishonor those constitutional obligations. Still, one need only recall the role of SuperPACs in the last election to see that Ken is right that if unchecked, civil society groups can pose real dangers to a constitutional democracy.