The private-public divide in the age of polarization

One of the arenas in the battlefield on polarization is the “public-private” divide. While libertarians fiercely resist any attempt to implement constitutional rights in the private sphere, CLS supporters and feminists on the left deconstruct the private-public divide, essentially arguing, following Isaiah Berlin, that “freedom for the wolves has often meant death for the sheep.” This paper rejects both libertarianism and the overarching leftist critic and adopts a Rawlsian line of thought to properly balance freedom and equality. The paper outlines a nuanced, “principled balancing” between freedom and equality, taking into account four major factors: the nature of the right that is applied in the private sphere, the nature of the infringed freedom, the scope of the implementation of the constitutional right, and framework of implementation of the right (legislation, direct implementation, or Drittwirkung).