If the law is a jealous mistress, then the public-private distinction is like a dysfunctional spouse – you can't live with it and you can't live without it. It has been around forever, but it continues to fail as an organizing principle. Still, as Ronald Moe urges us to remember, it was “the Framers' intention that the governmental and private sectors be kept separate and subject to distinct theories of jurisprudence.” In fact, the distinction makes an enduring point for democratic societies: The separation of public from private creates the space necessary for individualism to flourish. And, in case we forget the lesson, the definition of fascism confirms it by assuming the dominance of the community or the hegemony of the public. It is the presence of public law, what the great English legal thinker A. V. Dicey called the law of the Constitution, that mediates the line between the two regimes in the democratic, rule of law-bound, state.

The public-private distinction and democratic political theory have an inevitable role to play in the context of privatization.