By LAEL WEINBERGER
Review of Confident Pluralism: Surviving and Thriving through Deep Difference, by John D. Inazu
Chicago: University of Chicago Press, 2016
Over the last several months, I’ve been in many conversations where someone has described the current presidential election cycle as peculiarly nasty. It is of course a nonscientific sample. But I suspect that the sentiment that we’re living through a particularly partisan moment is not unique to my acquaintances.
Few would deny that America is a deeply divided country today. Examples of division are easy to find, even aside from the presidential election. Congress has been gridlocked for several years; the Supreme Court is now experiencing something that looks rather like gridlock itself, with a four-four split on some of its most politically contentious cases. Americans learn about the world through media outlets (MSNBC, Fox News) that cater to their preexisting political biases. Divisions over LGBT rights, abortion, immigration, racial profiling, and police bias may have been around for a long time, but the tensions surrounding these issues certainly seem to have sharpened in recent years.
America’s divisions are deep enough that it might be worth asking the question of whether we as a society can survive—much less thrive—in the midst of it. John Inazu poses this question in his new book, Confident Pluralism. And he answers the question with a cautiously optimistic, “Yes.” As his subtitle suggests, he believes that we can survive and thrive in the midst of deep difference. But it will take some hard work. Inazu is a professor of law and political science at Washington University-St. Louis, and in this book he puts forward a positive program for a pluralistic, inclusive civic culture.
Inazu argues for a position that he calls confident pluralism. What Inazu describes is a vision for a society that affirms both confidence and pluralism. Confidence without pluralism, Inazu says, “suppresses difference, sometimes violently.” But pluralism without confidence “ignores or trivializes” the experiences and beliefs of real people. A confident pluralist society is one that accepts a diversity of deeply held beliefs and radically different values.
In the first half of the book, focused on law, Inazu considers confident pluralism as a matter of constitutional commitment. He argues that basic principles of confident pluralism are embedded in the First Amendment to the Constitution. The First Amendment protects “our ideas, our groups, and our ways of life from unwarranted state interference.” It also plays a counter-majoritarian role, protecting “ideas and groups that we don’t like.”
The First Amendment, Inazu writes, represents a “modest unity.” Americans may disagree passionately about the meaning of the good life, and how to promote it; they may be convinced that their neighbors are deeply misguided and wrong about any number of important values and principles. But the First Amendment provides a kind of “mutual nonaggression pact,” an agreement that we won’t try to stamp out with the force of law views that differ from our own.
In the First Amendment, Inazu identifies a basic commitment to confident pluralism. But Inazu also finds reason to worry about some recent developments in the Supreme Court’s First Amendment doctrine. He gives extended treatment to the Supreme Court’s treatment of freedom of association, its analysis of public forums and free speech, and its rules governing public funding and subsidies for speech. On each subject, Inazu finds that recent cases have failed to consistently appreciate, and sometimes have even undermined, the basic values of confident pluralism.
Take for example Inazu’s critique of recent Supreme Court doctrine governing freedom of assembly and association. Voluntary groups, Inazu argues, “are the cornerstone of confident pluralism. The speech and discourse through which we engage with one another depends upon the groups in which we forge ideas, relationships, and affections.” The First Amendment specifically protects the right of the people “peaceably to assemble.” But the Court has abandoned any special protection for assembly. The Court really just protects two kinds of association, intimate associations and expressive associations. In both cases the protection is redundant with other constitutional protections. Intimate association is basically limited to family relationships, which are generally protected anyway under other constitutional provisions. Expressive associations are defined as groups whose purposes and activities further some other First Amendment interest, like speech. In practice, Inazu argues, this means that association is just about written out of the Constitution. A right to associate has been largely collapsed into the right of free speech.
Does it matter? Inazu argues that it does. The act of associating is important and meaningful in itself and it is worth protecting. Current doctrine leads courts to consider whether an organization has an expressive character before they will apply strict scrutiny to any regulations on that group. But it is not always easy to demonstrate that an organization has an expressive purpose to the satisfaction of the courts. And if an organization can’t show that it is expressive, then those organizations can be regulated without the courts giving it any meaningful scrutiny.
This is illustrated in the case of the Jaycees, founded in 1920 as a civic organization for young men. In the mid-1970s, chapters in Minneapolis and St. Paul began admitting women to membership, in violation of the national organization policy. When the national organization imposed sanctions, the local chapters sued, arguing that the national organization was engaging in discrimination in violation of Minnesota law. The Jaycees argued that their organization had a right to decide who to associate with, and contended that this included a right to define the organization as all-male. The Jaycees lost in the Supreme Court in 1984; the Court was unconvinced that Jaycees had any organizational message for which the exclusion of women was necessary. As a result, the Court did not scrutinize the government action (restricting the ability of the Jaycees to define their own membership requirements) with the skepticism it would have employed had the organization been expressive.
Inazu thinks that it should be irrelevant whether the court can identify a particular message on the part of an organization. Inazu would have courts skeptically scrutinize government interference with voluntary organizations. He provides other, more recent, examples where this might have made a difference. Members of the Top Hatters Motorcycle Club were excluded from attending a local food festival in California because of their club attire (vests with an illustration of a winged skull wearing a top hat); their lawsuit against the town was dismissed because the judge did not think that they were an expressive association. If the court had applied strict scrutiny to the town’s action, the result would have been different. Inazu also suggests that his proposed heightened scrutiny would have provided a legal strategy to the Muslim student organizations that were infiltrated by New York police operatives. As it is, these groups had little chance in court. The courts, Inazu argues, are underprotecting the valuable civic practice of associating.
Inazu’s analysis of other constitutional issues shares the same basic structure as his account of freedom of association: for an adherent of confident pluralism, the constitutional landscape is a mix of good and bad. Sometimes the courts get it right (as, for example, when the Supreme Court protected church control over hiring and firing of personnel in Hosanna-Tabor v. EEOC). But often, Inazu thinks the Court has gotten things wrong. Confident pluralism requires public forums, and Inazu thinks that courts are too indulgent in allowing local governments to regulate public spaces by means of “time, place, and manner” restrictions. Confident pluralism would seek to promote discussion between and different groups, and Inazu thinks that the courts have been too willing to let the government impose its orthodoxy in making funding decisions (as, for instance, when it allowed a university to deny a Christian group official recognition in Christian Legal Society v. Martinez). The current constitutional law doctrine articulated by the Supreme Court leaves quite a bit to be desired when evaluated from the perspective of confident pluralism.
In the second half of the book, Inazu turns from the legal doctrine to the civic practices that can promote such a culture. Inazu argues for a humble manifestation of “confident” pluralism. Confidence in our own positions, Inazu suggests, should enable us to engage charitably with others. The sentiment is reminiscent of Thomas Jefferson’s belief that “truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict . . . .” We can leave our echo chambers and engage with people of other perspectives when we are confident, rather than insecure, in our own beliefs. We should also recognize that the freedom we enjoy to believe and profess freely our own views also protects the views of others. The (perhaps counterintuitive) civic aspirations that should flow from confident pluralism are then tolerance, humility, and patience.
Inazu considers how to work out these aspirations in some thorny practical situations. He endorses a permissive and libertarian legal approach to free speech, but urges circumspection on the part of speakers. Confident pluralism’s “speech imperative” is to “soften our tone,” “move out of our echo chambers,” and avoid the “conversation stopper.” It should also affect our attitude toward the speech of others: we should choose to “listen without jumping immediately to defensiveness.” In the “conflict between religious liberty and gay rights,” for example, Inazu criticizes LGBT advocates for using the “conversation stopper” on religious believers (accusing them of intolerance and bigotry), and criticizes religious believers for inadequate listening (responding to these criticisms with charges of persecution).
Inazu’s call to listen better and speak more thoughtfully is predictable. More challenging is the subject of collective action—boycotts and strikes. On the one hand, one might suspect that confident pluralism would foster collective action. It would protect and even encourage the formation of groups and communities with distinctive and diverse perspectives. Such groups would have the ability to act in concert to get their concerns into the public and make their members’ voices heard by acting together: one group can boycott a company that supports causes it finds objectionable.
On the other hand, boycotts and protests often hinder the kind of constructive dialogue that Inazu praises elsewhere. Neither the liberals who called for boycotts of Chick-fil-A (for supporting groups opposed to same-sex marriage), nor the conservatives who called for the boycott of Starbucks (for supporting groups favoring same-sex marriage), did so as a way of persuading others. More commonly, boycotts and protests are means of pressuring, silencing, shaming, and stigmatizing contrary views. They are a means for one group tries to get a second group to conform to the first’s principles. This seems more like the pursuit of conformity than of pluralism. Inazu tries to find a middle way: he argues that collective action like protests and boycotts should be protected forms of expression (like speech), but that (like speech) they should be tempered with tolerance, humility, and patience. It’s not a particularly satisfying solution (what a humble protest looks like in practice is anyone’s guess).
It is easier to imagine practicing the aspirations of confident pluralism in interpersonal interactions. That is ultimately what Inazu wants to see people do. “We can bridge relational distance even when we cannot bridge ideological difference,” Inazu writes. Interactions, conversations, friendships between individuals with fundamental differences can lead people to discover common ground. Inazu is not naïve about the difficulties in forming such relationships. The differences that divide us involve ideology, race, and class. Inazu warns us against feeling too smug if, for example, we have some good conversations with someone of a different ideology but the same race and class background as ourselves. To really live out confident pluralism will take considerable amounts of hard work, including building friendships with people outside of our comfort zones. But if such relationships can be built and maintained, our lives will be enriched, and a pluralistic society can hold together notwithstanding deep differences.
Inazu has written an ambitious book. It is nothing less than a call for Americans to get along, to change the way they talk, to build friendships with people they don’t know (and might even consider ideological adversaries). And along the way, he argues for reforms to constitutional law so as to better facilitate this transformation. It is a vision that might appeal to many people across the ideological spectrum. It is presented in accessible prose, and Inazu has an eye for engaging anecdotes to illustrate a point.
But the book’s ambition inevitably forces Inazu to paint in broad brush-strokes, with lots of details left underdeveloped. Scholars of law and political theory will find enough here to intrigue but not enough to convince a skeptic. The doctrinal critique is clear enough, but the proposals for future doctrinal changes are sketched in only general terms (though the footnotes provide ample further reading for those so inclined). The theoretical commitments, as to constitutional interpretation or political theory, are largely left unspecified.
Inazu’s constitutional analysis is a case in point. He is not clear about the relationship between the constitution and “confident pluralism.” When Inazu criticizes the Supreme Court’s case law on expressive association, he clearly thinks that the case law does not do as much as it ought to foster a vibrantly diverse civil society. But does he think it is constitutionally mandated? It is not entirely clear whether he thinks that this is a failure of legal analysis—and if so, in what way. One could certainly imagine a “living-Constitution” argument to the effect that confident pluralism has become a constitutional commitment; perhaps this is the significance of the mid-twentieth century turn to free speech. Maybe this is the way that confident pluralism became a part of the law. Alternatively, one could imagine an argument that confident pluralism is fostered by an originalist interpretation of freedom of assembly which the courts ought to be applying because it is the law. Inazu sometimes gestures at one and sometimes another of these approaches, but he avoids committing himself to any one theory of constitutional jurisprudence in making his arguments.
At times, it seems that the underdeveloped points of Inazu’s analysis are simply the result of trying to keep the book accessible to a general audience. At other times, it seems that under-specification is an intentional effort to speak to multiple audiences. Inazu’s constitutional jurisprudence is eclectic precisely because he is writing for several audiences who, among other things, disagree about how to interpret the Constitution. Reading Inazu, one sees an artful weaving together of ideas from, among others, the founding era, from twentieth-century free-speech liberals, from pluralist defenders of civil society, and from contemporary conservative defenders of robust religious freedom. Some of these tend toward originalism, some do not. Inazu wants to bring these constituencies together.
In constitutional theory as in so many other areas, Inazu is striving to bridge partisan divides. A basic aim of the book is to show people across the political spectrum that they have shared interests in fostering a free, diverse society, with maximum possible space for each distinct individual, community, and viewpoint to express itself. He wants to defend ideas about religious liberty that have been largely associated with American conservatism in recent years. He also wants to defend ideas about free speech that have been traditionally associated with American liberalism (his invocations of Louis Brandeis, Robert Jackson, and William Brennan remind readers just how much his position shares with that tradition).
I think Inazu’s basic instincts are quite right—that in a diverse society, some sort of pluralist approach is the logical way forward. The concrete legal proposals—strong protections for free speech, for associations, for assembly and protest—have something to offer to any number of groups which can expect to encounter opposition, from Black Lives Matter, to the pro-life movement, to the LGBT community, to conservative religious congregations.
But the moral convictions that so often animate these diverse groups make “confident pluralism” a hard sell. No matter how appealing it is to imagine a world where we each respect and listen to each other, it is hard when very often one group thinks the other is wrong and, worse, morally incorrect. And it is hard to temper the rhetoric when so much of the activism at all points on the political spectrum is driven by television and Twitter, cultures that reward the soundbite and have little space for the extended, thoughtful discussion.
None of this means that a pluralist approach is not worth trying. It most certainly is. It does mean that there are many obstacles to operationalizing even the most appealing vision for social pluralism. No one book can answer all the questions, certainly not in a short 150 pages.
In Confident Pluralism, Inazu has presented an accessible and thoughtful case for pluralism in contemporary America. It will not convince all the skeptics. But perhaps it can start a conversation that will continue in the spirit with which Inazu wrote: confidently putting forward ideas, and considering alternatives with humility, patience, and generosity.
Posted on 29 August 2016
LAEL WEINBERGER is a J.D./Ph.D. candidate at the University of Chicago Law School and University of Chicago Department of History. Follow him on Twitter @LaelWeinberger.
