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Mark Tushnet, How the Constitution Shapes Civil Society's Contribution to Policymaking, in In the States, Across the Nation, and Beyond: Democratic and Constitutional Perspectives on Nonprofit Advocacy 21 (Elizabeth J. Reid ed., 2003).

Abstract: Mark Tushnet examines the relation between the Constitution and civil society's institutions. The paper points out that civil society's institutions are creatures of law, including constitutional law, and so—on the most abstract level—cannot be understood of as operating entirely outside the domain of the state. Likewise, the paper examines contemporary U.S. constitutional doctrine, primarily the law of free speech, in relation to civil society's institutions, and argues that the constitutional protections given to those institutions' efforts to influence policymaking are less robust than might be expected, consisting primarily of a ban on discrimination against particular viewpoints.