Mark Tushnet


This Article explores the relationship between the institutions of civil society and our government. Although it is said that the institutions of civil society can act as a check on government power, this Article explores the paradox implicit in that notion: the boundaries of these institutions are defined by the government directly or indirectly. After analyzing the question "How can civil society's institutions be an appropriate check on government when the government itself exercises significant influence on these institutions?," Tushnet illustrates how free expression, freedom of religion and substantive due process have been interpreted with respect to the institutions of civil society. In doing so, the Article examines the ways in which constitutional law defines and regulates civil society, as well as the restrictions on the government's constitutional powers to do so. Ironically, Tushnet concludes that the government's constitutional power with regard to civil society's institutions is limited by civil society itself.

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