Associations and the Constitution: Four Questions About Four Freedoms

When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why exactly strong pluralism should be preferred to the existing settlement between associational interests and equality values. Second, I draw a parallel between strong pluralism and broader sorting theories, and ask about the choice of a level of generality or social organization on which to promote sorting. Third, I interrogate strong pluralism’s three limits, and finally I ask whether extending the theory beyond regulation to government funding can be defended on a liberty theory such as strong pluralism. I conclude by commending Four Freedoms to everyone interested in these pressing questions