Associations and the Constitution: Four Questions About Four Freedoms

32 Pages Posted: 15 Apr 2014 Last revised: 17 Jul 2014

Date Written: April 14, 2014

Abstract

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.

Keywords: First Amendment, Freedom of Association, Religious Freedom

Suggested Citation

Tebbe, Nelson, Associations and the Constitution: Four Questions About Four Freedoms (April 14, 2014). North Carolina Law Review, Vol. 92, No. 3, 2014; Brooklyn Law School, Legal Studies Paper No. 381. Available at SSRN: https://ssrn.com/abstract=2424898

Nelson Tebbe (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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