ARTICLE

Abstract

Institutions and institutional categories pervade the world and pervade human thinking, but institutional categorization plays a smaller role in constitutional doctrine than might be expected. Although constitutional doctrine often uses categories of the law’s own making, and often draws distinctions based on the character of the act or (less frequently) the character of the agent who engages in some act, it only reluctantly provides for different constitutional rules for different social institutions. There are some plausible reasons for this reluctance, but most of the reasons turn out on closer inspection to be less sound than is commonly thought.

* Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University.