Academic journal article Michigan Law Review

Institutional Autonomy and Constitutional Structure

Academic journal article Michigan Law Review

Institutional Autonomy and Constitutional Structure

Article excerpt


First Amendment Institutions. By Paul Horwitz. Cambridge and London: Harvard University Press. 2013. Pp. xiii, 359. $49.95.


This Review makes two claims. The first is that Paul Horwitz's1 excellent book, First Amendment Institutions, depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to men- tion its title) that the book's implications are limited to the First Amend- ment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating ex- pression. These are the terms on which the book's argument-and, to a large extent, the leading edge of contemporary institutionalist thinking- ought to be received, understood, and evaluated.

First Amendment institutionalism urges greater attention to the nature of institutions as producers of speech and domains for individual communi- cation, reflection, and socialization (pp. 8-11). Its central premise is that by recognizing the unique roles and features of entities such as universities, newspapers, and churches, courts can develop a better and more coherent body of constitutional doctrine.

Professor Horwitz develops the institutionalist case for a revised consti- tutional jurisprudence. He also goes further, asserting that institutions are more than the sum of their parts. The thrust of his argument is that individ- ual flourishing is best promoted by recognizing the distribution of auton- omy among numerous institutions, both public and private. It is not enough for sovereign authority to be divided between the federal government, the states, and private citizens. The nonpolitical institutions that people use to develop their faculties, construct meaning, and exercise freedom must also be insulated from governmental intrusion.2

We might think of this theory in terms of structural institutionalism3: a conception of the constitutional order in which various institutions outside the realm of political government "develop their own visions of what the First Amendment means" (p. 19). Within the scheme of structural institu- tionalism, the primary role of the First Amendment is to identify those enti- ties in which autonomy resides. Professor Horwitz does not suggest that every conceivable organization, or even every important one, carries with it a zone of autonomy. Such an approach would diminish the sovereign au- thority of governments beyond recognition. But "First Amendment institu- tions"-universities, churches, media outlets, and other entities that comprise the " 'infrastructure of free expression' "4-occupy a special place in society. These organizations "play a central role in the formation and dissemination of public discourse" (p. 82). By recognizing and respecting the autonomy of such institutions, the argument goes, courts can promote discourse, self-actualization, and a richer social environment. They can also confine the reach of government to its proper, and limited, sphere.

Professor Horwitz is not the first to suggest a structural dimension to the First Amendment. Nor is he the first to connect structural objectives with the enterprise of First Amendment institutionalism.5 The value of First Amendment Institutions comes from developing this position systematically and in impressive depth. Through his analysis and juxtaposition of various institutions, Professor Horwitz advances the argument that "government is merely one strut" in the "broader infrastructure" of social existence (p. 83). In so doing, he provides a portrait of structural institutionalism as a consti- tutional ideal.

That, however, cannot be the endpoint of the institutionalist movement. If structural institutionalism is a legitimate constitutional theory, it must emanate from a discernible constitutional source. …

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