Knowledge And Decisions

The Supreme Court could not, of course, “fine tune” their decision as an economic process would, much less make it automatically adjustable in accordance with the successively revealed (and perhaps continuously changing) preferences of the people affected. Their decision was both categorical and precedential — a “package deal” in space and time. If this is what the Constitution commanded the court to do, discussions of alternatives might be pointless. But even the defenders of the court’s decisions in the “state action” cases justify those decisions on policy grounds as judicial improvisations — “sound results” without “unifying doctrines,”²⁸ affirmation of the basic principles of a “free society” with a “poverty of principled articulation” of the legal basis for the conclusions,²⁹ etc. The court has neither obeyed a constitutional compulsion nor filled an institutional vacuum; it has chosen to supersede other decision-making processes.

The legal basis of the Marsh decision was that the privately owned development prohibited activities which “an ordinary town” could not constitutionally prohibit, and that “there is nothing to distinguish” this suburban development from ordinary municipalities “except that the title belongs to a private corporation.”³⁰ Similarly, there is nothing to distinguish the Supreme Court from any nine other men of similar appearance except that they have legally certified titles to act as they do. In neither instance can the elaborate social processes or weighty commitments involved be waved aside by denigrating the pieces of paper on which the end-results are summarized. If parallel appearance or parallel function is sufficient to subject a privately purchased asset to constitutional limitations not applicable to the same asset when in alternative uses, then the economic value of assets in general is reduced as their particular uses approach those of state run organizations in form or function. Economically, this is an additional (discriminatory) implicit tax on performing functions paralleling those of state agencies. The social consequences of discouraging alternatives to services provided by government seem especially questionable in a pluralistic society, founded on rejection of over-reaching government.

What distinguishes the economic relationships surrounding private property from the political relationships subject to constitutional state action constraints is nothing as gross as outward appearance or day-to-day functioning. The administrative routine in the headquarters of the Red Cross might well resemble the administrative routine in the headquarters of a Nazi death camp, but that would hardly make the two organizations similar in any socially meaningful way. In the case of economic relationships what is involved is voluntary association, modifiable by mutual agreement and terminable by either party. In the case of governmental relationships, what is involved is coercive power, overwhelming to the individual, and pervasive throughout a given geographic entity, however democratically selected the wielders of that power might be. The constitutional limitations on governmental power carve out areas of exemption from it, in order that individuals may voluntarily create their own preferred order within their own boundaries of discretion. The outward form of that voluntarily-created order may in some instances strikingly resemble governmental processes, but its voluntariness makes it fundamentally different in meaning, and in the ultimate control of its human results. The appellate courts’ role as watchdogs patrolling the boundaries of governmental power is essential in order that others may be secure and free on the other side of those boundaries. But what makes watchdogs valuable is precisely their ability to distinguish those people who are to be kept at bay and those who are to be left alone. A watchdog who could not make that distinction would not be a watchdog at all, but simply a general menace.

The voluntariness of many actions — i.e., personal freedom — is valued by many simply for its own sake. In addition, however, voluntary decision-making processes have many advantages which are lost when courts attempt to prescribe results rather than define decision-making boundaries.