The Constitutional Rights of Private Governments

Private organizations enjoy constitutional rights that allow them to coerce their members. Such rights pose a puzzle for theories maintaining that the purpose of rights is to protect individuals from coercion. This Article proposes a solution to the puzzle by arguing that such theories of rights—which the Article terms “anticoercion theories”—are misguided. The purpose of rights is not to protect individuals from coercion but rather to insure that individuals are coerced by the right sort of institution. The Article defends this “institutional” theory of rights as more normatively attractive than the anticoercion theory. The institutional theory is also better capable of explaining the U.S. Supreme Court’s doctrine of associational autonomy in Boy Scouts of America v. Dale and Troxel v. Granville.