Wednesday, October 10, 2012
Inazu on "The Four Freedoms"
Last Friday, we welcomed to Notre Dame my friend Prof. John Inazu (Wash. U.), to workshop his paper, "The Four Freedoms." Here's the abstract:
The First Amendment’s rights of speech, press, religion, and assembly were once
“interwoven” but distinct. Together, these freedoms advanced a pluralist
skepticism of state orthodoxy that protected religious and other forms of
liberty. The connections among these rights were evident at the Framing. They
were also prominent during the 1930s and 1940s, when legal and political
rhetoric recognized the “preferred position” of the “Four Freedoms.” We have
lost sight of the Four Freedoms, supplanting their unified distinctiveness with
an undifferentiated free speech framework driven by unsatisfying concepts like
content neutrality and public forum analysis. It did not have to be this way,
and it may not be too late to change course. This Article seeks to renew the
pluralist emphasis once represented by the Four Freedoms.
The consequences of losing the pluralist vision are nowhere more evident than in the
diminishing constitutional protections for religious groups, which are
paradigmatic of the expressive, dissenting, and culture-forming groups of civil
society. The Four Freedoms remind us that the boundaries of religious liberty
have never rested solely in the First Amendment’s free exercise clause —
religious liberty is best strengthened by ensuring robust protections of more
general forms of liberty. But the normative effort to reclaim pluralism is not
without costs, and it confronts powerful objections from anti-discrimination
norms pertaining to race, gender, and sexual orientation — objections that
cannot go unanswered.
Among other things, the John's paper -- in the course of a discussion about the Bob Jones case -- engages and criticizes parts of this paper of mine, "Religious Freedom and the Nondiscrimination Norm." Fun was had by all.
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