SCOTUS to US: There is no such thing as civil society

The week of July 20, 2022, the US Supreme Court released a series of decisions about religious liberty, gun rights, and abortion rights that significantly reversed established precedent. The court ruled that (1) it’s an infringement on the free exercise of religion to deny taxpayer support to religious schools, (2) states cannot restrict people’s ability to carry guns in public, and (3) there is no right to privacy that protects access to abortion (and probably also contraception, consensual sex, and gay marriage). 

Though the obvious tension between a pro-gun and a purportedly “pro-life” ruling in has led some, including the Democratic Speaker of the House, to call the court’s rulings “hypocritical” or contradictory, these three rulings are absolutely consistent with one another in their approach to the public sphere and civil privacy. By de-funding public education, rendering public space inherently more risky, and eliminating the right to privacy in one’s sexual and reproductive choices, these three decisions all eliminate the existence of a key element of classically liberal social ontology: the civil private sphere (i.e., the realm of civil privacy, the private sector, etc.). Put simply, they’re reworking the way the U.S. Constitution models the relation between public and private from the classically liberal model the framers used in the 18th century into a neoliberal one premised on the idea that, as Margaret Thatcher infamously put it, “there is no such thing as society.” In this neoliberal model, there is no civil society (e.g., public space, the realm of individual civil privacy, etc.) and the state only exists to enforce the boundaries of the patriarchal racial capitalist framing of the domestic private sphere.

The distinction between public and private pre-dates written Western philosophy. For example, ancient Greek society treated the household, or the realm of bodily needs and reproduction, as something that should be kept private and out of public life. In its ancient Greek form, the “public” was the sphere of (masculine, self-ruling) reason, and the “private” was the sphere of (feminine, incapable of self-rule) production and reproduction, including the oikos/economic. This version of the public/private is not identical to but is informed by the division between culture and nature: the public is the realm of the highest, rational human culture, and the private is the realm of lower culture (women’s voices, flute-playing) and nature. Classical liberalism has its own distinctive framing of this relationship between public and private, and it’s the particularities of this framing that the Court is reworking.

As political theorist Carole Pateman explains in her canonical 1988 book The Sexual Contract, classically liberal social contract theory reworks traditional nature/culture or private/public dichotomies by splitting the “culture” or “public” into two parts and treating this split in the public as if it were the actual split between public and private.

But before I get into how that works, let’s back up a bit and talk about the nature/culture distinction and the origin of the idea of “civil society” or “civilization.” Social contract theory (a concept which I use interchangeably with classical liberalism, following Pateman) holds that “civil society” is what exists when people come together and consent to a relationship of mutual cooperation. Civil society, in other words, is artificial not natural. From the perspective of social contract theory, humans (i.e., Europeans) must have first existed in a state of nature that lacked formalized social relations or institutions. That natural state could be a Hobbsean war of all against all, or an altogether more romanticized Rousseauian “noble savage”; what almost all contract theorists agreed on was that the state of nature was definitely something that existed at that time in America. (For more on this see Pateman’s discussion of the “settler contract” in Contract & Domination.) Civil society was something that existed among white Europeans and which was supposedly lacking among indigeneous peoples across the rest of the globe. Because personhood and all the rights that go with that status were thought to exist only in civil society and not in the state of nature, it was then no violation to colonize land thought to be in the state of nature or to treat people thought to be in that state as property. Social contract theory used the idea of “civil society” to justify the colonial/racial project of excluding non-white people from personhood. 

Whereas social contract theory is typically read as positioning “nature” as outside civil society (“wild” America vs “civilized” Europe, for example), Pateman argues that classical liberalism also remakes the nature/culture binary within civil society as the distinction between public and private. Here, “private” means the realm of private business as opposed to the state, or individuals’ right to privacy from state interference; the “private” is whatever exists within civil society that’s not the explicit domain of the state. So, there is both the more traditionally sense of the private as the realm of reproduction, nature, and the household, and the new sense of the private as whatever exists in civil society alongside the state.

Because the private is now doubled, existing both as nature and in political society as whatever’s outside the state, “civil society” can refer to a number of different things: it can mean both the state and the civil private (when opposed to nature), or it can mean just the state (when opposed to the civil private). As Pateman explains, “civil society” is used in three different ways:

From one perspective, civil society is the contractual order that follows the pre-modern order of status, or the civil order of constitutional, limited government replaces political absolutism. From another perspective, civil society replaces the state of nature; and yet again, ‘civil’ also refers to one of the spheres, the public sphere, of ‘civil society.’ (10).

First, “civil society” can mean the rule of law as opposed to the rule of the absolute sovereign. Second, “civil society” can mean the opposite of the state of nature. Third, “civil society” can refer to the public as opposed to the private within “civilized” society. The second and third senses of “civil society” are the ones relevant to Pateman’s analysis. 

In the story of the origins of the social contract, “civil society” is the opposite of the state of nature/domestic sphere of needs (many OG contract theorists discuss the existence of family groups in the state of nature); however, in talking about actual white Western people living in civil society, “civil society” means the state. As Palteman explains,

After the original pact, the term ‘civil’ shifts and is used to refer not to the whole of ‘civil society’ but to one of its parts. To explain the shift, a double opposition and dependence between ‘natural’ and ‘civil’ must be taken into account. Once the original contract is entered into, the relevant dichotomy is between the private sphere and the civil, public sphere–a dichotomy that reflects the order of sexual difference in the natural condition, which is also a political difference. (11)

In the social contract’s origin story, “civil society” is the opposite of the state of nature, and refers to all of “civilized” society. But in reference to so-called “civilized” societies, “civil society” refers only to the public sphere. Just as the “private” can refer to either the realm of reproduction and necessity or the realm of non-state-governed commerce (the oikos and the economic, if you will), “civil society” can refer to either society as a whole or just the public sphere.

In this equivocation between civil-as-not-natural and civil-as-public, the private-as-oikos gets obscured behind the private-as-economic. As Pateman puts it, “the private sphere is ‘forgotten’ so that the ‘private’ shifts to the civil world and the CLASS division between private and public. The division is then made within the ‘civil’ realm itself, between the private, capitalist economy or private enterprise and the public or political state” (12). So, from this perspective, civil society includes both the public sector and the private sector; and this framing of the public/private dyad leaves the domestic private out of the equation, somewhere in limbo between these two different figurations of “civil society.”

The summer 2022 SCOTUS rulings about school funding, guns, and abortion (and the Thomas opinion going after contraception, sodomy laws, and gay marriage) are rooted in a perspective where there is no such equivocation between civil-as-not-natural and civil-as-public. From this perspective, there is only the state and the private family, and the function of the state is to enforce the strictures of the patriarchal racial capitalist family form. For example, there is no such thing as “public space” or “public safety,” a part of civil society that the state can regulate for the public/civil good, so that’s why states can’t regulate gun carrying. However, because there is likewise no such thing as individual civil privacy, the state has no limit to its ability to govern sex and reproduction. If there is no civil society, the only possible function of the state could be to enforce the family form.

Last week’s SCOTUS rulings re-shape the function of the federal government from one that regulated civil society into one that enforces the traditional patriarchal racial capitalist boundaries of the family form.