In the three years since Donald Trump first announced his plans to run for president, the United States seems to become more dramatically polarized and divided with each passing month. There are seemingly irresolvable differences in the beliefs, values, and identities of citizens across the country that too often play out in our legal system in clashes on a range of topics such as the tensions between law enforcement and minority communities. How can we possibly argue for civic aspirations like tolerance, humility, and patience in our current moment?
In Confident Pluralism, John D. Inazu analyzes the current state of the country, orients the contemporary United States within its broader history, and explores the ways that Americans canand muststrive to live together peaceably despite our deeply engrained differences. Pluralism is one of the founding creeds of the United Statesyet America’s society and legal system continues to face deep, unsolved structural problems in dealing with differing cultural anxieties and differing viewpoints. Inazu not only argues that it is possible to cohabitate peacefully in this country, but also lays out realistic guidelines for our society and legal system to achieve the new American dream through civic practices that value toleration over protest, humility over defensiveness, and persuasion over coercion.
With a new preface that addresses the election of Donald Trump, the decline in civic discourse after the election, the Nazi march in Charlottesville, and more, this new edition of Confident Pluralism is an essential clarion call during one of the most troubled times in US history. Inazu argues for institutions that can work to bring people together as well as political institutions that will defend the unprotected. Confident Pluralism offers a refreshing argument for how the legal system can protect peoples’ personal beliefs and differences and provides a path forward to a healthier future of tolerance, humility, and patience.
|Publisher:||University of Chicago Press|
|Edition description:||First Edition, Enlarged|
|Product dimensions:||6.00(w) x 8.90(h) x 0.60(d)|
About the Author
John D. Inazu is the Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis.
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Our Modest Unity
Rights, Inclusion, and Dissent
Confident pluralism explores how we might live together in our deep and sometimes painful differences. We should not underestimate the significance of those differences. We lack agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing. On these questions, Americans are — and perhaps always have been — a deeply divided people.
On the other hand, we do share some agreement. For all of our differences, we agree about many of the background practicalities we need to live as a society. Most of us value public roads, national defense, and sewer systems. We agree about many legal functions, like the payment of taxes and the need for courts and prisons. And we also share some constitutional commitments.
We might say that we have a modest unity.
This chapter locates part of our modest unity in a constitutional tradition that gives us a common vocabulary, history, and set of norms. We share a tradition that recognizes the wisdom of limiting state power, of encouraging persuasion over coercion, and of supporting a robust civil society. We share this constitutional heritage, even absent a shared religious or ethnic heritage.
Our modest unity includes two important premises: inclusion and dissent. The inclusion premise is that we are continually reshaping the boundaries of our political community. The dissent premise is that even as we work to extend and renegotiate these boundaries, we recognize the freedom of citizens in the voluntary groups of civil society to differ from established norms. Neither premise is an absolute. Inclusion will stop short of giving toddlers the right to vote or legally insane people the right to bear arms. Dissent will not extend to child molesters or cannibals.
We'll look more carefully at inclusion and dissent at the end of this chapter. But let's turn first to one of the core aspects of our modest unity that emerges from within our constitutional tradition: the individual rights set out in the Bill of Rights.
When the First Congress debated the wisdom of having a bill of rights, James Madison warned that mere "paper barriers" might fail to secure the liberty of the people against an overreaching majoritarianism. Yet Madison recognized that even paper barriers "have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community." To this end, they "may be one mean to controul the majority from those acts to which they might be otherwise inclined."
Madison's measured optimism has been somewhat vindicated. The individual rights set forth in the Bill of Rights have often guarded our ideas, our groups, and our ways of life from unwarranted state interference. The Second Amendment protects a "right to keep and bear arms." The Fourth, Fifth, and Sixth amendments set important limits on criminal investigations and prosecutions. The Eighth Amendment constrains "cruel and unusual punishments." These protections, to be sure, are uneven, contested, and evolving. But they have amounted to far more than paper barriers.
The check against majoritarian power and the protection from unwarranted state interference are nowhere more evident than in the First Amendment. The First Amendment's expressive and relational protections extend not only to our own interests, but also to ideas and groups that we don't like. We might think of these rights as facilitating a kind of mutual nonaggression pact, placing limits on what the state can do to any of us, for the sake of us all.
These mutually beneficial aspects of the First Amendment anchor some of the Supreme Court's canonical opinions. Consider these memorable words from Justice Louis Brandeis:
Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
A similar spirit is captured in a well-known passage from Justice Robert Jackson, defending the right of Jehovah's Witnesses to abstain from the pledge of allegiance during the Second World War:
We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse, or even contrary, will disintegrate the social organization. ... Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
The right to differ from orthodoxy transcends any one viewpoint or belief. In the 1940s the Jehovah's Witnesses confronted the orthodoxy of patriotism. In the 1960s civil rights groups stood against the orthodoxy of Jim Crow. In the 1980s gay rights groups challenged the orthodoxy of heterosexuality. Today's orthodoxies have shifted yet again. But we retain the right to differ.
One of the most important protections for this right to differ is today one of the most forgotten: the right of the people "peaceably to assemble." Although the significance of assembly has been lost from public consciousness in recent decades, it remains part of our modest unity even in its current hibernation. For most of our country's history, the right of assembly and the values that animate it have emboldened and protected dissenting and countercultural groups from across the political spectrum. They have created space for the voluntary groups of civil society to challenge prevailing norms and seemingly settled matters of policy.
Let's look more closely at the right of assembly. The First Amendment recognizes "the right of the people peaceably to assemble, and to petition for a redress of grievances." Some scholars have assumed that this wording limits the right of assembly to the purposes of petitioning the government. But a careful examination of text and history confirms that assembly and petition are separate rights. In fact, the broad contours of assembly were present from its constitutional inception. Debates in the House of Representatives during the adoption of the Bill of Rights linked the right of assembly to the arrest and trial of William Penn for an act of religious worship that had nothing to do with petition.
The earliest understandings of assembly also emphasized its importance to protecting unpopular and unorthodox groups. When Thomas Hartley of Pennsylvania proposed limiting the right to groups that assembled for "the general good," Elbridge Gerry of Massachusetts responded that contending for such a right was in fact "contend[ing] for nothing." In other words, the right of assembly could not be limited to "the general good" because it needed to extend to groups that might oppose that conception of the good.
At the end of the eighteenth century, the Democratic-Republican societies emerging out of the increasingly partisan divide between Federalists and Republicans repeatedly insisted on their right to form voluntary groups out of step with prevailing political norms. President George Washington took aim at these societies in his 1794 address to Congress, asserting that "associations of men" and "certain self-created societies" had fostered the Whiskey Rebellion. Historian Irving Brant observes "the damning epithet 'self-created' indorsed the current notion that ordinary people had no right to come together for political purposes."
But "ordinary people" continued to gather in voluntary groups for all kinds of purposes. During the antebellum era, they did so as both free and enslaved blacks. During the Progressive Era, they gathered, marched, and engaged with others for women's rights, civil rights, and labor rights. Law professor Akhil Amar has observed that these kinds of groups brought "a different lived experience" to the words of the First Amendment's assembly clause.
Prominent twentieth-century Americans, including Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles, and Eleanor Roosevelt all emphasized the significance of the assembly right. During the late 1930s and early 1940s, assembly anchored what were then known as the "Four Freedoms" (which also included speech, press, and religion). At the 1939 World's Fair, journalist Dorothy Thompson delivered a speech on assembly broadcast internationally from Radio City Music Hall. Thompson called assembly "the most essential right of the four." She continued:
The right to meet together for one purpose or another is actually the guaranty of the three other rights. Because what good is free speech if it is impossible to assemble people to listen to it? How are you going to have discussion at all unless you can hire a hall? How are you going to practice your religion, unless you can meet with a community of people who feel the same way? How can you even get out a newspaper, or any publication, without assembling some people to do it?
The history of assembly suggests that it encompasses more than group expression in momentary gatherings. Assembly extends to the groups that precede expression. This is one of the key insights of assembly that contemporary First Amendment doctrine obscures: in order to protect the expression that emerges from groups and effects political change, we must first protect the background relationships and informal activities that provide the space and structure for that expression to form. As law professor Michael McConnell has asserted:
Freedom of assembly was understood to protect not only the assembly itself but also the right to organize assemblies through more or less continual associations and for those associations to select their own members by their own criteria. The Sons of Liberty's public meetings were not purely spontaneous gatherings; they were planned, plotted, and led by men who shared a certain vision and met over a period of time, often secretly, to organize them. In this respect, the freedom of assembly is preparatory to the freedom of speech.
Most assemblies flow out of groups of people who gather to eat, talk, and share ideas long before they make political speeches or enact agendas. Indeed, the vision of assembly encompassing groups that create rather than simply manifest expression facilitates the informal bonds that have strengthened some of our most important social movements. Historians John Hope Franklin and Alfred A. Moss Jr. describe how "moments of informality" spread across clubs, literary parties, and other events created "a cohesive force" among the leaders of the Harlem Renaissance. Early suffragists organized around banner meetings, potato-sack races, baby shows, pageants, and teatimes. Religious movements have relied upon ordinary gatherings like church dinners and small groups. And gay rights groups nurtured relationships and built political strategy through "gay social and activity clubs, retreats, vacations, and professional organizations."
The voluntary groups protected by the right of assembly also foster relationships that enable us to pursue self-realization and self-governance. Law professor Richard Garnett reminds us that these groups provide "alternative sources of meaning and education, and are essential both to genuine pluralism and to freedom of thought and belief." Some bonds, Supreme Court Justice William Brennan has argued, "foster diversity and act as critical buffers between the individual and the power of the State." That solidarity empowers us to challenge, and even to reject, prevailing norms.
The right of assembly reflects goals and purposes different from those underlying the First Amendment's free speech right. One of the most important differences is that assembly invokes a relational context: one can speak alone; one cannot assemble alone. A second unique aspect of assembly is that it allows multiple actors to engage not only with an external audience, but also with one another within a group: to foster ideas and identities in the "pre-expressive" moments of group formation. Finally, even as assembly fosters solidarity, it also benefits individuals. Law professor Timothy Zick suggests "the ability to freely assemble or join with others fortifies individuals" and "emboldens them to come forward, and to participate in social and political activities." Thus, Zick notes, "in addition to creating space for group activities and group autonomy, the freedom of assembly facilitates a variety of individual acts of defiance, contention, and expression." These sociological insights are reinforced by examples ranging from coming out experiences to religious rebirths. And the protections for these deeply personal experiences are not intuitively located in the free speech right.
The protections of assembly are part of our mutual nonaggression pact. They extend to groups that we like and groups that we don't like. In the memorable phrase of Supreme Court Justice Hugo Black, "the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate, or sooner or later they will be denied to the ideas we cherish."
Look carefully at Justice Black's quote — something is missing. Black fails to mention the free exercise of religion. The reason for the omission is not clear. It could be that writing in a case about the Communist Party in 1961, Black was focusing on the rights of the First Amendment most relevant to the particular facts. But his omission points to the question of whether religious exercise remains part of our modest unity, and whether it still regarded as beneficial to all.
The suggestion that religious liberty may fall outside of today's modest unity will no doubt unsettle many religious believers. Yet it may be that legal protections for religious free exercise are less salient today than in earlier times. It may be that the free exercise of religion has moved from a right in which all citizens have a stake to a more limited right attractive to only a subset of citizens.
To be sure, the importance of religious freedom as an abstract ideal has not yet lost its cultural and political appeal in the United States. Most Americans value religious liberty in a general sense. And our government continues to advocate for religious freedom around the globe. Consider these words from a 2012 address from then–Secretary of State Hillary Clinton:
Religious freedom is not just about religion. It's not just about the right of Roman Catholics to organize a mass or Muslims to hold a religious funeral or Baha'is to meet in each other's homes for prayer, or Jews to celebrate high holy days together. As important as those rituals are, religious freedom is also about the right of people to think what they want, say what they think and come together in fellowship without the state looking over their shoulder.
Despite this rhetorical and popular support for religious freedom, fewer people today seem to recognize or care about the immediate need for legal protections rooted in the free exercise of religion. One reason for this change is that many past challenges to religious freedom are no longer active threats. We don't enforce blasphemy laws. We don't compel statements of belief. We don't impose taxes to support the training of ministers. These changes mean that as a practical matter, many Americans no longer depend upon the free exercise right for their religious liberty. They are free to practice their religion without government constraints.
The clearest example — the least threatened religious believer in America today — is the progressively oriented Christian, who at once remains a part of the dominant historical and cultural faith in the United States but whose views are largely aligned with contemporary liberal values. It is hard to think of many aspects of progressive Christian belief and practice that confront government regulation in a way that implicates religious liberty. This is not to say that progressive Christians hold no views antithetical to government interests. For example, many elements of the religious left challenge American policy on war, criminal law, immigration, and the environment. But most of these arguments pose few questions about the boundaries of free exercise — they are religiously informed policy arguments, not religious free exercise arguments.
In addition to progressive religious believers who do not sense an immediate need for legal protections under the free exercise clause, there are also a growing number of Americans who are either actually or functionally nonreligious. These nonbelievers are a subset of that opaque and verbally ambiguous category of the "nones" — the survey respondents who signal a lack of any religious affiliation. But unlike merely unaffiliated religious citizens, nonbelievers may have no need for free exercise protections. They are more likely to find affinity with the disestablishment side of the First Amendment's religious liberty protections.(Continues…)
Excerpted from "Confident Pluralism"
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Table of Contents
IntroductionPart I Constitutional Commitments Chapter 1 Our Modest Unity: Rights, Inclusion, and Dissent Chapter 2 The Voluntary Groups Requirement: Rehabilitating the Right of Association Chapter 3 The Public Forum Requirement: Public Spaces, Private Forums, and Parks & Recreation Chapter 4 The Public Funding Requirement: Tax Exemptions, Student Forums, and Government OrthodoxiesPart II Civic Practices Chapter 5 Civic Aspirations: Tolerance, Humility, and Patience Chapter 6 Living Speech: Rising above Insults and Bullying Chapter 7 Collective Action: Protests, Boycotts, and Strikes Chapter 8 Common Ground: Relationships across Difference Conclusion Acknowledgments Notes Index