What is the added value – or disvalue – of a “right to effective governance”? That question is phrased in relative terms, and needs a baseline. If the baseline is the United States Constitution, then suffice it to say that the US Constitution is notoriously an eighteenth-century constitution with a few later additions, and that it includes rather few “positive rights” (meaning affirmative rights to government action, as opposed to negative rights to government forbearance). Assuming that the “right to effective governance” is defined in a manner that actually requires the government to do something, and especially if the right is enforceable by private persons, then it would add a great deal to the requirements of the US Constitution. (Whether the result would be a net benefit is a different question.)

Although recent U.S. Supreme Court decisions respecting corporate religious liberty have been heavily criticized, this chapter argues that corporate religious freedom is not the novel or radical development that critics decry. What is new, rather, is an increasingly intense opposition to any special legal accommodation of religious commitments. Indeed, upon close examination, the familiar criticisms do not for the most part actually turn on anything peculiar to the corporate form. They are better understood as manifestations of an emerging, deep-seated opposition to the traditional American commitment to religious freedom as a distinctive legal right. And this opposition is itself part of a broader effort to repudiate the vestiges of an older religious or biblical conception of American community, as described in Robert Bellah’s influential scholarship on American “civil religion,” in favor of a different conception that we might describe as “secular” or “progressive.”