Williams, Patricia.
"Metro Broadcasting, Inc. v. FCC: Regrouping
in Singular Times." Harvard Law Review 104.2 (1990):
539-40.The reflexive referral of all but the most privatized controversies to the legislature obscures the fact that even the narrowest contract or property dispute is never really as private as theory would have it. Courts always have to consider social ramifications that are rarely limited to the named parties, whether that consideration is of "policy"-the contemporaneous society of those similarly situated-or whether the consideration is funneled into issues of "precedent"-the prior or subsequent society of others. Indeed, I think we must begin to appreciate the extent to which courts actually deal in and perpetuate not merely individual property interests, but also property interests that govern, silence, and empower significant groups of us as citizens. One device by which courts have traditionally limited challenges to the social status quo is the consideration of cases and controversies constrained within a paradigm of private contract law. This insistence amounts to considering all litigation from within a contractarian paradigm that fragments the social contract into a series of little contracts. In the context of cases about civil liberties, this can be downright destructive.
As citizens, we tend-to think of raw Hobbesian economic interest as being separate from the shrine in which our civil liberties, our freedom, and our humanity reside. Yet as lawyers we learn it is not. Our liberty was always and is increasingly complex and contradictory, a symbology framed not just by economic notions in some general sense, but also by specific contractarian ideas of commodification and bipolar exchange. The subjectivity of our civil and political selves is simultaneously objectified by our most distanced, arm's-length transactions.
This results in a twisted conception of freedom in which the conception of ourselves as "free" becomes transformed into that of "free agent." With this shift, another occurs: we no longer see freedom's inverse as "domination," but rather only as the inverse of free agency. Thus, those who by one set of criteria are living in states of cultural, economic, or physical subjugation may be redescribed as inefficient wealth maximizers, mere depoliticized shoppers who are irrational and undeserving by either choice or resistance. A model of constitutional jurisprudence based on this contractarian vision therefore fails to anticipate the situation in which an aggregate of private transactions in a society begins to conflict with express social guarantees: those express protections or ideals are robbed of their force as law and become situated as "external," implicit interference.