It seems we Americans can't get along after all. We are bedeviled by our diversity. We shout past each other about bathrooms and sexuality, race and policing, religion and immigration, and everything in between. We don't agree on whether it's appropriate for a major party candidate to speak ill of entire faiths or ethnic groups. We share an eroding trust in institutions of all sorts, but we don't see eye to eye about why we no longer trust them. Our political elites appear hopelessly polarized. Our efforts to get along despite these differences do not inspire confidence.
But law professor John Inazu would like to boost that confidence. In his book Confident Pluralism he suggests that the American constitutional framework and civic culture give us hope that we can continue to resolve even the deepest differences without violence. He describes confident pluralism in both a descriptive and prescriptive sense. We are pluralistic: we have diverse convictions about the world, and they are often incommensurable. But, Inazu counsels, we also ought to see public life through pluralistic eyes; our law and culture invite us to find ways to work with each other across lines of difference. And that kind of engagement does not necessarily take us down the road to relativism. We ought to embrace pluralism but retain confidence in our own convictions.
Inazu provides a persuasive account of how American law and culture, embattled as they both are, can remain catalysts for pluralism. But a background question nags: Why have confidence in pluralism in the first place? Why desire unity about pluralism itself? Inazu argues that confident pluralism requires a "modest unity" around basic goals, most importantly living in absence of violent or abusive conflict. We need not share the same reasons for embracing this thin view of peaceful coexistence; we simply need to agree that it is a worthy goal. This is fine as far as it goes; most agree that living in peace is preferable to the alternative, and there is generally no persuading those who think otherwise. The problem, as I see it, is that we could achieve a thin view of peace without confident pluralism. So we need an account of why confident pluralism is a better means to living in peace than other options; otherwise it's not clear why we would adopt it, other than the unsatisfying claim that it's simply the way we do things around here. And given the other options, there is a great deal at stake in giving that account.
The Seedbeds of a Confident Pluralism
Inazu's discussion of the American roots of confident pluralism comes in two parts: the first focuses on the American constitutional experiment; the second, on civic culture. His discussion of the Constitution is strong, especially the focus on his recognized specialty, the freedom of association, which he ably surveyed and defended in his first book, Liberty's Refuge. His tour of the legal dimensions of pluralism uses a range of engaging scenarios and pop-cultural takeoffs, from real-life constitutional disputes between student groups and public universities to the ever-present conflicts in the television comedy Parks and Recreation. (Inazu and I share an affection for the politics and personalities of that show, though I'd never thought of Leslie and Ron's fights as case studies in pluralism.) One of the examples—his own family's experience with internment during World War II—brings the message close to home.
Inazu surveys relevant constitutional doctrines—the right to associate, the features of the public forum, the vexed legal dimensions of public funding—with a brevity that also manages to be thorough and clear. He sees the First Amendment as pluralism's enabler; he also demonstrates that some of the Supreme Court's applications of the First Amendment framework have been counterproductive, including the court's narrow understanding of the types of associations that the First Amendment protects. Inazu does seem to be resigned to, though by no means happy about, the Supreme Court's recent jurisprudence on religion, which treats religion (under most circumstances) as a set of social relationships that are no different from any other set of associations. Hence Inazu focuses especially on protections for associations under the free speech and assembly clauses of the US Constitution. I would contend for a more robust understanding of the free exercise clause, but Inazu clearly envisions better opportunities in other First Amendment provisions for the kind of "modest unity" a confident pluralism requires.
His discussion of civic culture is aspirational and guardedly optimistic, but not Pollyannaish. He introduces three aspirations in particular—tolerance, patience, and humility—as particularly important to his vision of the confident pluralist. Inazu then uses these aspirations as a way to assess various forms of political practice, including collective action (boycotts, strikes, and the like), public debate, and initiatives to find common ground.
We need an account of why confident pluralism is a better means to living in peace than other options; otherwise it's not clear why we would adopt it...
These "confident aspirations" certainly fit with the book's theme of modesty, in the sense that they represent a bare minimum of virtue for confident pluralists. Of course, one could point to a host of other fruits of the pluralist spirit. Scholars of social capital, for example, point to trust as indispensable to engaging each other well—and that literature can leave readers despairing at the prospects of building trust across lines of difference. Inazu explores that literature largely through the voice of Robert Putnam, its leading interpreter, but he does it too briefly. Putnam has claimed (not without detractors) that living and working in diverse settings can actually decrease one's commitment to pluralism. Other research Inazu does not discuss, most notably Diana Mutz's Hearing the Other Side, suggests diversity can also diminish one's confidence. (The thesis: Civic participation rates are lower among those citizens with diverse "cross-cutting" networks, because moral complexity can be politically paralyzing.) Yet Inazu might plausibly argue that he has highlighted tolerance, patience, and humility precisely in response to these findings in social science. We must engage diversity with the right dispositions, lest the experience leave us alienated, disaffected, untrusting, and dubious about politics.
Confident Pluralists to What End?
One of the themes in Inazu's treatment of American law and culture is that we don't have to come to the agreement that much of our public debate usually presumes is necessary. We simply need to manage our expectations about public life. If we recognize the reality of diversity and set modest goals for how to live with that diversity, we can find in our own legal and cultural practices a way to meet our goals without resorting to violence. That way is confident pluralism.
But this argument about goals returns me to my earlier question: Why have confidence in pluralism? Let's agree with Inazu for sake of argument that a thin view of peaceful coexistence is a fundamental priority (among others) for the body politic. Why suggest that we ought to commit to confident pluralism as a way to achieve it? The answer is not obvious.
It might help to think about the question comparatively. For centuries the model in France has been state dominance of associations in civil society. Since the French Revolution, the state controlled public life in the name of a robust vision of the citizen that emphasizes individual liberty and equality within the confines of a tightly unified political community. Associations with competing visions, including religious associations, are generally not welcome in public life. It is not that French law and society are blind to diversity. It's hard to miss: France is an increasingly multiethnic state, perhaps more so than any other state in Europe. But the French state has contended with that fact of pluralism by building a public square with high walls. As former Interior Minister (and later President) Nicolas Sarkozy put it in 2003, "Freedom is the rule in the private sphere; republican conformity is the rule in the public sphere." So France has told the young Muslim girl she can wear the hijab at home, but not at the public school. Catholics may take Mass at Notre Dame de Paris, but they ought not gather en masse for prayer under the Eiffel Tower. France has not embraced confident pluralism as a response to difference. On the contrary, it has sought to privatize difference. Yet despite the occasional exceptions to the rule (including last year's terrifying spasms of violence), contemporary France has met the confident pluralist's goal of relatively peaceful coexistence.
We must engage diversity with the right dispositions, lest the experience leave us alienated, disaffected, untrusting, and dubious about politics.
Or consider a more extreme case: the authoritarian regime backed by a loyal military and domestic security force. The examples today and in history are too many to name, and the approach of these regimes is too familiar. The best way to address conflict, especially challenges from dissenting voices, is not through pluralism or privatization, but through the simple calculus of fear. These regimes have sought to suppress difference. While many of these regimes are riven by factional conflict and horrible violence, others maintain a high degree of order over a long period of time. In those latter countries, suppression of difference makes for relatively peaceful coexistence.
Or return to an alternative account of the United States itself. Yes, we have deep-seated diversity that often triggers conflict. But we need not commit to a normative idea of confident pluralism to address that conflict. Our civic practice in the United States today is largely about sorting ourselves to avoid the objectionable. We live near those with the same sociodemographic profile; we join political parties that have shed the ideological diversity of their recent past; we worship with those who share our rituals and beliefs—and dread conversations with those who don't. We have effectively segregated difference. Yet that segregation might account for some measure of our peaceful coexistence. I can easily forebear noxious ideas and people if I do not have to engage them.
Privatization, suppression, segregation—these are not high-minded aspirations. Many of us bristle at a line of reasoning that any one of these frameworks is the best way to live in peace. Inazu certainly does, in principle—and I do too. I suspect that is because Inazu and I have our own deep-seated convictions about pluralism itself; we see engagement across lines of difference as better than models that privatize, suppress, or segregate. We do not see pluralism as a good only to the extent that it breeds peace, because if that was our only reason we could just as well select one of the other avenues to peace.
But Inazu only gives us hints about the value of pluralism over those other options. He suggests, for example, that tolerance, as a key aspiration of confident pluralism, requires "respecting people, aiming for fair discussion, and allowing for space to differ about serious matters." Yet he wants to leave open the reasons for respect, fairness, and space for deliberation. He simply wants to show that embracing these tolerant values is a condition of peaceful coexistence. The problem is that there are alternative values—for example, suppression or segregation—that can result in peaceful coexistence without committing us to respect, fairness, and deliberative space.
In the final analysis, Inazu cannot avoid a theory of politics if he wants us to accept confident pluralism over the alternatives. Inazu identifies a goal of peaceful coexistence, and ably describes the ways American structures and norms can be marshalled to pursue that goal. But the advantages of the right to assembly or aspirations of patience, humility, and tolerance are not self-evident, given the other avenues to peace. And I don't think it is enough for Inazu to note that it is not his intention to make claims beyond the American context, that is, that his goal is to identify only those structures and norms that work for us. Like any state, and perhaps now more than any other time in recent memory, the United States faces the real temptations of privatizing, suppressing, or segregating our differences. We cannot assume that our legal and cultural history is a seedbed for confident pluralism.
Confident Pluralism is an illuminating account of how the American experiment, in both law and culture (and the intersections of the two), might help us foster a modest unity of public goals through a confident pluralism. But it left me wanting greater confidence in confident pluralism itself.