COPYRIGHT © 2019 VIRGINIA LAW REVIEW ASSOCIATION VIRGINIA LAW REVIEW VOLUME 105 MARCH 2019 NUMBER 1 ARTICLES THE GOVERNMENT-COULD-NOT-WORK DOCTRINE Nikolas Bowie* The Supreme Court has recently declared that it is presumptively un- constitutional for the government to compel individuals to do or pay for things to which they have religious or political objections. Last Term, the Court applied this declaration to uphold the First Amendment ar- guments made by public-sector employees, and it appears poised to vin- dicate similar claims by religious objectors to antidiscrimination laws in the future. But this declaration is wrong. Indeed, throughout Ameri- can history—from the Articles of Confederation through Lochner v. New York and Employment Division v. Smith, the Court itself has re- peatedly rejected the notion that compulsory laws, in and of themselves, are presumptively unconstitutional. This Article offers a novel examination of the history of challenges to compulsory laws inside and outside the context of the First Amendment. For centuries, the Supreme Court has faced hundreds of challenges to objectionable taxes, objectionable drafts, objectionable regulations, and objectionable funding conditions. With few exceptions, the Court has responded that the “government could not work” if it lacked the power to compel people to do things to which they objected. Although the Constitution prescribes many specific limits on the powers of the federal and state governments, the Constitution’s very purpose was to * Assistant Professor, Harvard Law School. For advice, criticism, feedback, and inspiration, I thank Christine Desan, Richard Fallon, Kenneth Mack, Leah Litman, Joshua Matz, Lucas Issacharoff, Martha Minow, Samuel Moyn, Matthew Shahabian, Joe Singer, and Laurence Tribe. 1 COPYRIGHT © 2019 VIRGINIA LAW REVIEW ASSOCIATION 2 Virginia Law Review [Vol. 105:1 create a union that had the power to compel political minorities to ac- cept the will of a political majority. Such a union would be incompatible with a governing document that prohibited officials from compelling people to take any action to which they religiously or politically ob- jected—even when those objections were sincerely held. Borrowing the Supreme Court’s own language, I call the Court’s typi- cal response the “government-could-not-work” doctrine, and conclude that objectionable compulsion, in and of itself, should not trigger the strict scrutiny of Abood v. Detroit Board of Education. Rather, compul- sory laws should be treated the same as any other law, and analyzed for whether they are arbitrary, are discriminatory, or otherwise violate specific constitutional limits. I. HISTORY ...................................................................................... 11 A. 1787–1943 .......................................................................... 11 1. The Origins of the Government-Could-Not-Work Doctrine ...................................................................... 11 2. The First Amendment Non-Exception ........................... 14 3. The Public–Private Exception ...................................... 16 B. 1943–1982 .......................................................................... 19 1. West Virginia v. Barnette and Its Aftermath ................ 19 2. The Court Reins in Barnette ......................................... 23 3. The Continuous Public-Private Exception ................... 25 C. 1982–Present ...................................................................... 28 1. The Government-Could-Not-Work Doctrine Returns ... 28 2. The Persistent Public–Private Exception ..................... 33 II. THE GOVERNMENT-COULD-NOT-WORK DOCTRINE ................... 35 III. APPLICATIONS ........................................................................... 42 A. Controversial Recipients .................................................... 42 B. Agency-Fee Arrangements ................................................. 45 C. Municipal Speech ............................................................... 53 D. Antidiscrimination Laws .................................................... 58 IV. CONCLUSION ............................................................................. 60 For over two thousand years, conscientious people from Plato to Gan- dhi have grappled with the dilemma of how to respond when a govern- ment orders you to do something you disagree with—say, pay a tax that COPYRIGHT © 2019 VIRGINIA LAW REVIEW ASSOCIATION 2019] The Government-Could-Not-Work Doctrine 3 will fund a war.1 Perhaps the most famous answer comes from the book of Matthew, when Jesus of Nazareth declared, “Render . unto Caesar the things which are Caesar’s; and unto God the things that are God’s.”2 One way to interpret this declaration contends that you should always comply with fairly imposed civil obligations—at least until you can per- suade others to accommodate your views.3 A second argues that if con- science so dictates, you should disobey the government and accept what- ever punishment it doles in return.4 Recently, a group of constitutional lawyers have offered a third option: Sue the government. Adopting a libertarian interpretation of the First Amendment’s protection of free speech and religious exercise, these law- yers argue that it is presumptively unconstitutional for the government ever to put one’s moral obligations in conflict with one’s civil obligations. 1 Compare, e.g., Plato, Crito 54a–54d, in The Collected Dialogues of Plato 93 (Hugh Teden- nick trans., 1987), with Plato, Apology 28b–38b, in The Collected Dialogues of Plato, supra, at 51–68. See also Alexander Meiklejohn, Political Freedom 21–24 (1960) (articulating the distinction between Socrates’s disobedience to the law in Apology and Socrates’s obedience to the law in Crito). 2 Matthew 22:21 (King James). 3 See, e.g., Romans 13:1–2 (King James) (“Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God . .”); Thomas Aquinas, On Law, Moral- ity, and Politics 64 (Richard J. Regan trans., 2d ed. 2002) (“[Just laws] have obligatory force in the court of conscience from the eternal law, from which they are derived.”); Immanuel Kant, What is Enlightenment?, in Foundations of the Metaphysics of Morals 85, 87 (Lewis White Beck trans., 1959) (1785) (“Many affairs which are conducted in the interest of the community require a certain mechanism through which some members of the community must passively conduct themselves with an artificial unanimity . Here argument is certainly not allowed—one must obey.”). 4 See, e.g., 1 Peter 2:19 (King James) (“For this is thankworthy, if a man for conscience toward God endure grief, suffering wrongfully.”); Augustine, On the Free Choice of the Will, On Grace and Free Choice, and Other Writings 10 (Peter King ed. & trans., 2010) (“[A] law that is not just does not seem to me to be a law.”); Mohandas K. Gandhi, “Render Unto Cae- sar,” in 48 The Collected Works of Mahatma Gandhi 483 (1989) (“Jesus’s whole preaching and practice point unmistakably to non-co-operation, which necessarily includes nonpayment of taxes. Jesus never recognized man’s authority as against God’s.”); Martin Luther King, Jr., Letter from Birmingham Jail, in Why We Can’t Wait 77, 86 (1964) (“I submit that an individ- ual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”); John Locke, A Letter Concerning Toleration 43 (1689) (“[A] private Person is to abstain from the Action that he judges unlawful, and he is to undergo the Punishment, which it is not unlawful for him to bear.”); Henry David Tho- reau, Resistance to Civil Government (Civil Disobedience), in Political Writings 1, 10 (Nancy L. Rosenblum ed., 1996) (1849) (“Under a true government which imprisons any unjustly, the true place for a just man is . a prison.”). COPYRIGHT © 2019 VIRGINIA LAW REVIEW ASSOCIATION 4 Virginia Law Review [Vol. 105:1 As evidence, they draw on cases such as West Virginia v. Barnette, in which the Supreme Court struck down a regulation that compelled object- ing school children to recite the pledge of allegiance.5 In the past few years these lawyers have asked the Court to extend Barnette’s logic to petitioners who object to birth control, labor unions, vaccinations, same- sex marriage, and all kinds of politically charged topics.6 The Supreme Court has been sympathetic to these lawyers, in one case declaring that the First Amendment generally “prevent[s] the government from compelling individuals to express certain views” or “pay subsidies for speech to which they object.”7 The Court has even acted on this dec- laration to invalidate laws that tax public-sector employees and donate the revenue to labor unions.8 But this declaration is wrong. Treating compul- sory laws as presumptively invalid not only contradicts historical practice, it’s also at odds with the Court’s precedent in nearly every other consti- tutional context.9 The First Amendment, along with the rest of the Constitution, was adopted to create a functional government out of the embers of a failing 5 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 6 See, e.g., Janus v. Am. Fed’n, 585 U.S. ___ (2018); Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 584 U.S. ___ (2018); Friedrichs