The Regulation of Social Meaning

An exception here may be religion.6 Compare Rust v Sullivan, 500 US 173, 194 (1991) ("When Congress established a National Endowment for Democracy... it was not constitutionally required to fund a program to encourage competing lines of political philosophy.... .");Cruzan v Missouri, 497 US 261, 281 (1990) (state may prefer life in spite of recognized right to refuse medical treatment).of "citizens to confess by word... their faith" in such ideas: "Are you, or have you ever been, a member of the Communist Party?" 9 Government has always and everywhere advanced the orthodox by rewarding the believers and by segregating or punishing the heretics.' 0The permissible means for advancing such orthodoxy may be limited, and the instances may be few, but the end has always been the place of government.From where then does this oddity in Barnette arise?"What is its source?How is it possible, when thinking of doctrine like the First Amendment, to imagine it organized around a notion so plainly inconsistent with so much else that government does?How can we come, as a constitutional culture, to intone, mantralike, in one area of the constitution a principle that we know to be false in just about every other?Such selectivity in constitutional law may not be uncommon.' 2 In this case, I want to argue, it has a particular source.Its source is a kind of blindness-a learned blindness-to an idea, or an understanding, common in much of social theory, 3 yet ignored 4 in much of law.This is the idea of social construction. 5It makes sense to speak as if government does not "pre-' See, for example, In re Anastaplo, 366 US 82, 100 (1961) (Black dissenting) (asked by the Committee on Character and Fitness, "Are you a member of the Communist Party?") 10 Indeed, in Barnette itself, the government clearly succeeded in establishing an orthodoxy.Barnette simply permitted dissenters to dissent by not participating in a flag salute; but the dissent was dissent only because it was dissent from an orthodox view, one supported and endorsed by government action.See Barnette, 319 US at 641-42.The Barnette principle notwithstanding, not even in Barnette itself was the government forced to take no part in the construction of the orthodoxy.Id at 640.For a thorough discussion of "neutrality" in the First Amendment context, see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 NYU L Rev 675, 702-17 (1992)." This oddity in the Barnette principle has been well noted before.See Shiffrin, 27 UCLA L Rev at 567-78 (cited in note 6).-12 Think, for example, about realism in law.We are happy to think of much of our constituitonal jurisprudence as realistic-in Balkin's terms, "as Professors Peller and Singer tell us, we are all legal realists now," J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L J 375, 385 (footnotes omitted)-but within the first amendment, the dominant mode of legal jurisprudence (as distinct from academic jurisprudence) is formalistic.Id at 385 n 28." For a succinct summary of this position, see Roberto Mangabeira Unger, Social Theory: Its Situation and Its Task 1 (Cambridge, 1987) ("Modern social thought was born proclaiming that society is made and imagined, that it is a human artifact rather than an expression of an underlying natural order.").14 For the most part.The exception is the critical in law.See text accompanying notes 335-39." One might attempt a definition of "social construction," but in what follows, I will let the examples do the work of definition.My defense for such an evasion is that my " Id at 329 (citations omitted) (brackets in original).