Volume 111

Community, Society, and Individualism in Constitutional Law

by David A. Super

Alongside the familiar ideological splits in constitutional law lies another division older and more fundamental. Since the Federalists battled the Anti-Federalists, our allegiances have been divided between two vastly different forms of social organization. Community is built around the close, complex relationships among small groups of people, such as the members of a family, the residents of a small town, or the congregants of a church. On the other hand, Society organizes limited interactions among relative strangers, pursuing efficiency or ideological ends. Industrialization and urbanization ensured Society’s dominance in economic life, politics, and law. Yet continued reverence for Community ideals of connection and belonging keeps it a powerful force.

Society’s neglect of Community is deeply destabilizing. President Trump’s ability to speak to many voters’ fear of Society obliterating Community helped him triumph over establishment Republicans and Democrats speaking the language of Society.

This affinity for Community has shaped numerous constitutional doctrines. Ideologically disparate Justices have united to protect key manifestations of Community such as small towns, schools, local police, and juries.

Ignoring Community has undermined constitutional litigation. It has also led to the acceptance of dubious and inconsistent analogies between different phenomena in Community and Society. This has warped doctrines from campaign finance to affirmative action.

Community’s champions must decide whether to continue to regard the federal government as the paramount threat to be cabined whenever possible, or to see it as Community’s only hope for protection against multinational corporations, Big Data, and other private sector threats. This strategic choice will shape numerous areas of constitutional law.

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