The Rise of the Civil Rights Constitution

Editor’s Note: We cannot forget that the group quota regime is just that: not merely an ideology but a proper regime, a civilizational and constitutional rival to the American regime. It has its own legal and organizing principles, which directly challenge those of our own Constitution. These operating principles of the group quota regime have long been taking hold in our society and in our governing institutions.

Jesse Merriam, a legal and political philosopher, recently joined Tom Klingenstein to discuss that quiet revolution: its roots, its current state, and the possibility for reform. This transcript has been edited for length and clarity.

TK: Welcome Jesse Merriam. Jesse is an associate professor of government at Patrick Henry College and a research fellow at the Claremont Institute’s Center for the American Way of Life. Jesse holds a J.D. from George Washington University Law School and a Ph.D. in judicial politics and legal philosophy from Johns Hopkins University.

JM: It’s good to be with you.

TK: Jesse, you are a man of controversy. Among your controversial opinions are: 

  • The legal conservative movement has been much less successful than most conservatives believe.
  • Diversity and anti-discrimination are the twin pillars of today’s Constitution which makes it fair to say that today America operates under the Civil Rights Constitution. 
  • We should revive, to a degree, freedom of association, which you believe to be a right necessary for self-governance. 
  • The Federalist Society, despite notable successes, has not provided what the legal conservative movement needs to be successful.
  • Originalism has not, as intended, advanced a distinctly conservative agenda.
  • The recent Supreme Court affirmative action decisions are not likely to reduce affirmative action by very much. 

Harvard and Affirmative Action

TK: Let’s take the last claim first. My impression is that most analysts think that the recent UNC and Harvard affirmative action decisions will have a much greater impact than you do. Why are you so skeptical?

JM: My skepticism boils down to three reasons. One reason has to do with the unique status of affirmative action. We can understand this uniqueness in terms of both law and policy. Affirmative action law is unique in the sense that, since the civil rights revolution, affirmative action is the only type of governmental discrimination based on race that the Supreme Court has permitted. Affirmative action is also unique in American policy in that it is the only public program in all of American history—to my knowledge at least—that has expanded in breadth and strengthened in force in the face of growing resistance from the American people, state legislatures, and federal courts. 

TK: How have state legislatures resisted affirmative action? 

JM: Several states have had bans on affirmative action for many years. These bans are not well-known because they are largely irrelevant in that they have not worked to eliminate or even limit affirmative action. 

TK: Why haven’t they worked? 

JM: The bans are ineffective for a variety of reasons, but the biggest factor is that university admissions systems are opaque, and states, even Red States, generally lack the will to force compliance. Given that state legislatures can’t control their own public university systems, I see little reason for believing that the Supreme Court will be able to control the nation’s university systems through the SFFA decision. 

TK: Ok. So one reason for your skepticism has to do with our prior experiences in this area of law. What’s the second reason?

JM: The second reason has to do with the SFFA opinion itself. At the end of the majority opinion, Chief Justice Roberts wrote that students may still use their personal statements to describe how race has affected their lives and this may still be taken into account in the admission process. Many colleges and universities will use this escape route to achieve affirmative action. Although the SFFA decision will likely affect affirmative action in many ways—such as by increasing the complexity and opacity of admissions systems—at the end of the day, I do not think it will have a big effect in terms of who is admitted and who is not. Some effect, perhaps, but probably not more than a few percentage points.

TK: And the third reason?

JM: My third reason has to do with the brute facts of race and higher education. We know from the expert report submitted in the Harvard case that if Harvard were to accept only the top decile of applicants based solely on objective academic factors, Harvard’s student body would be only 0.76% black. Today, with the use of affirmative action, Harvard is roughly 15% black (as compared to 13% of the population). Just about no one—and certainly not anyone with the power to make decisions on these issues—would support forcing Harvard to adopt an admissions policy that would make it less than 1% black. As a result, even the critics of affirmative action must find some way to say we can eliminate affirmative action without substantially affecting black enrollment. 

This is why Students for Fair Admissions, the group that brought the lawsuit against Harvard’s affirmative action program, claimed in the oral argument that even if the Court ruled against affirmative action, Harvard could—and should—gerrymander its admissions formula to ensure that blacks would be at least 10% of the student body. In other words, even the affirmative action opponents were so committed to a critical mass of black students that they argued in favor of a black quota at more than ten times what merit would warrant. 

TK: Are all of the Justices uncomfortable with a strictly merit based admission process? How about Justice Thomas? He seems to be a pretty fierce critic of affirmative action. 

JM: That is true. Justice Thomas is a fierce critic of affirmative action practices, at least as a formal matter. But I don’t think even he would be comfortable with Harvard being under 1% black. 

TK: Why do you say that? 

JM: There are many personal indicators we can point to, such as Clarence Thomas’s insisting on something like an affirmative action quota at the University of Texas when he was Reagan’s assistant secretary of education. But the most revealing point on this issue is that Justice Thomas ignored the numbers at issue in the Harvard case. In fact, in his SFFA concurrence he distorted how affirmative action works. In that concurrence, he sought to soften the blow of the Court’s holding by claiming that eliminating affirmative action would have little effect on the ability of colleges and universities to produce a racially diverse student body. That is simply not true. Again, we know from the Harvard data that affirmative action produces a Harvard class that is more than ten times black than what strict merit-based admissions would generate. The brute facts surrounding race and higher education are such that Harvard, just like all elite schools, would not be able to create racially diverse schools through strict merit-based admissions, at least not if we understand diversity to require a significant percentage of black students. That Thomas misrepresented this basic fact suggests that he is uncomfortable with letting the chips fall according to merit. 

TK: Would any of the other justices be comfortable with strict merit-based admissions?

JM: I don’t think so, given that not a single justice was willing to engage the reality of what Harvard would look like under strict merit-based admission. 

TK: Although, in general, you are skeptical about the effects of the recent affirmative action decisions, you wrote somewhere that there is much to “celebrate.” 

JM: The SFFA opinion sharply criticized the diversity justification for affirmative action, so even though the opinion did not reject affirmative action altogether, that is still something for affirmative-action opponents to celebrate. 

TK: So they criticized diversity but at the end of day, they accepted it? 

JM: Yes, you could say that. The majority questioned the doctrinal underpinnings for the Court’s affirmative action jurisprudence—the so-called diversity rationale—but the Court stopped short of rejecting affirmative action altogether. 

TK: What are likely to be the consequences of the Court’s criticizing the diversity rationale? For example, given the Court’s skepticism of the diversity rationale, would it be likely to reject the military’s claim that diversity is important for developing a capable fighting force? 

JM: I don’t think the Court’s criticism of the diversity rationale will be that consequential in the short-term. Although the opinion criticized the diversity rationale, it stopped short of overruling Bakke and Grutter, the two cases that most directly defended diversity as a compelling governmental interest. This refusal to overrule Bakke and Grutter is important because, when the Court wants to reject a legal regime, it explicitly will overrule a decision governing that regime, such as the way Dobbs overruled Roe and Casey. But when the Court criticizes but stops short of overruling a regime-creating precedent, the way the Court did in the Harvard case, it’s essentially signaling, “we don’t like this system, but we’re not sure what to do with it.” So while it’s certainly a good sign for affirmative action opponents that the Court is becoming skeptical of the diversity rationale, it is certainly too soon to say that the Harvard case signifies that the diversity rationale will disappear from constitutional discourse and American politics. 

TK: So near term you don’t expect the Court’s criticism of the diversity rationale to have much effect? 

JM: No, I don’t. 

TK: If you had to guess, will the Court ultimately reverse the diversity rationale—that is, Bakke and Grutter

JM: I wouldn’t be surprised if, within the next five or ten years, the Court overruled Bakke and Grutter, given how close it came to doing that in the SFFA case. I would be surprised, however, if we saw substantial changes in affirmative action practices as a result. I think it will require much more than overruling Bakke and Grutter to see significant change in affirmative action practices, and I don’t see that change coming anytime soon. 

The Civil Rights Constitution

TK: Your argument that diversity and anti-discrimination have become the highest constitutional values sounds similar to the argument Chris Caldwell made in his very successful book The Age of Entitlement, in which he traced out the journey from 1960’s civil rights acts to today’s woke regime. 

JM: There are certainly some similarities, but of course, Caldwell is not a lawyer, so his framework is oriented around the socio-political culture surrounding the passage of the 1964 Civil Rights Act. As a legal scholar, I focus much more on judicial opinions. 

TK: Let’s return to the substance of your argument, that we now operate under a civil rights constitution. Where exactly have you made this argument and what led you to it?

JM: Well, I would say my path to the argument is somewhat circuitous, in that it stems from my interest in the nature of legal reasoning and the meaning of the rule of law. My thinking about how these interests relate to civil rights probably began when I first read Herbert Wechsler’s Neutral Principles article, a very famous, and controversial, piece that Wechsler wrote in the Harvard Law Review in 1959. Over the years, I have become increasingly interested in how our current constitutional order is framed by the civil rights revolution. I recently compiled some of my arguments in a 2023 booklet, How We Got Our Antiracist Constitution: Canonizing Brown v. Board of Education in Courts and Minds. In that booklet, I argue that our constitutional order has changed since the civil rights revolution so that it now works as an antiracist constitutional order, revolving around two moral axes. In this order, there is the “good” axis, providing that diversity is our greatest constitutional value, so that it must be promoted no matter the costs. And there is the “bad” axis, providing that discrimination is our greatest constitutional evil, so that any constitutional guarantee that permits private discrimination must be narrowed or even eliminated.

TK: What are the consequences of this new order?

JM: There are of course lots of good consequences and these are the consequences that are familiar to all Americans. Less often discussed is what we had to forfeit to produce those good consequences. 

TK: What exactly did we forfeit, in your opinion? 

JM: One could answer this question in lots of different ways, but as a legal theorist, I am most interested in how, as a matter of legal reasoning, making diversity our greatest good and anti-discrimination our greatest evil must necessarily come at the expense of structural guarantees like federalism and the state action requirement, and individual liberties like associational, property, and religious liberty rights. 

TK: What is an example where the civil rights order has undermined our commitment to federalism? 

JM: A good example is Katzenbach v. McClung (1964). This case involved the question of whether Title II of the Civil Rights Act of 1964 could constitutionally apply to Ollie’s Barbecue, a small family-owned restaurant in Birmingham, Alabama. [Title II says you cannot be treated differently by a place of public accommodation because of your race, color, religion, or national origin.] 

Even though Ollie’s was located wholly within the State of Alabama, and even though the federal government conceded that the restaurant was so small and local that it likely did not have a single out-of-state customer in the year in question, the Supreme Court nevertheless held that the restaurant was subject to the federal government’s control, because the restaurant bought its poultry from an in-state supplier who purchased some of his poultry from outside the state. According to the Supreme Court, the fact that some items sold by Ollie’s Barbecue originally came from outside the state was enough of a nexus to interstate commerce to justify the federal government’s control of the restaurant’s internal operations. 

No decision — not even during the New Deal — had gone this far in terms of expanding federal power over a small business’s internal operations. But in the case of Ollie’s Barbecue, the Court unanimously extended the Commerce Clause to eliminate the restaurant’s discriminatory seating policy. 

TK: It sounds like you believe the Court should have allowed Ollie’s to practice segregation should it choose. If so, what would have been the court’s rationale? 

JM: I wouldn’t put it that way—that is, in terms of allowing or not allowing. It’s important to remember that courts are not regulatory authorities. The Court’s duty was to apply the Commerce Clause on the basis of its actual meaning, without the pull of a moral imperative to banish private discrimination. 

So, in the case of Ollie’s Barbecue, the question simply should have been whether the regulated activity — the restaurant’s seating policy — was part of an interstate commercial transaction. It’s hard to see how it could be understood that way, given that the seating policy took place entirely within the state, and in fact, entirely on the restaurant’s property. 

My point, though, to get back to your question, is not whether Ollie’s discrimination should have been allowed or not allowed. The question should have revolved around the meaning of interstate commerce, apart from the moral tug of eradicating discrimination. 

TK: But if you think the Ollie’s case was decided incorrectly, doesn’t that mean that you are saying segregation should have been permitted?

JM: In two important ways, your question highlights my argument about how the civil rights revolution has transformed the way we think about constitutional politics. One, your question suggests that the Supreme Court is a regulatory body that is designed to permit and forbid classes of actions. Two, your question assumes that political controversies must be resolved uniformly, comprehensively, and decisively. 

This is of course how we think about the Supreme Court and social issues now. We must have one policy on same-sex marriage, abortion, affirmative action, etc. and that one policy must come directly from the Supreme Court. 

Before the civil rights revolution, however, this way of thinking was alien to Americans. The Court did not act as a regulatory authority, going around trying to solve various social problems. Likewise, it was widely accepted that, as a necessary consequence of limited government, solutions to social problems would sometimes be gradual, variegated, and incomplete. 

So yes, this may mean that in some isolated instances, as in the case of Ollie’s Barbecue, we would have to leave the problem to private market forces and local authorities. But that does not mean, as you said, that segregation would have been permitted outright. First and foremost, in many instances, the federal government would have the authority to ban discrimination. For example, in a similar case involving an Atlanta motel that had many out-of-state patrons and engaged in significant out-of-state advertising, the Supreme Court was on much firmer footing in finding that the Commerce Clause extended to the discriminatory activity. And in those isolated instances in which the federal government would not have the authority to go after localized discrimination, private forces and local authorities would be recruited to pick up the slack. That is how our system was designed to work.. 

But by making discrimination our ultimate constitutional evil, we came to expect that in all cases, no matter how private and local, the Supreme Court had to give us a singular policy solution. When our commitment to eradicating private discrimination led us to abandon the Constitution’s commitment to disaggregated and limited power, we began operating under a new constitutional regime. 

The Conservative Legal Movement and the Federalist Society

TK: Let’s widen the frame and address what may be your most controversial opinion: The conservative legal movement has, by and large, been a failure despite the fact that conservatives have dominated the federal courts over the past 50 years. A failure, why?

JM: There are several ways we can approach this issue of why and how the movement has failed, but the most helpful way may be to start with what has made other, similar socio-legal movements successful in creating social change through the courts. Scholars generally agree that such movements need three things to be successful: ( 1 ) a support structure that can coordinate various agents of the movement in advancing a concrete and enduring legal agenda through the courts; ( 2 ) an underlying moral narrative to substantiate this legal agenda ; and ( 3 ) a nexus to a political movement and electorate to effectuate, solidify, and broaden this agenda through political action.

TK: Let’s start with point one in your framework. Doesn’t the Federalist Society serve as a support structure? 

JM: Not exactly. It is a support structure in a sense, in that it brings together like-minded lawyers and activists to meet and think through legal issues. But the organization lacks two features included in my first requirement. 

One, it lacks the power to coordinate agents in advancing an agenda through litigation. What has made groups like the ACLU, NAACP, and Lambda Legal Defense Fund so successful is that they can develop litigation strategies by doing things like controlling the flow of lawsuits, recruiting sympathetic plaintiffs, and framing a socio-political narrative to complement their legal agenda. The Federalist Society, as a debating forum, lacks that power.

Two, the Federalist Society also lacks an enduring and concrete legal agenda. We can see this in how the group is structured, as a debating forum for both libertarians and conservatives. These two groups are of course united on some issues, but they have many divisions, and these divisions have often prevented the Federalist Society from holding to a unified agenda. 

TK: But is that all FedSoc is, a debating society? 

JM: When it was formed, that’s all it was. This is because, in 1982, when the Federalist Society was created, there was no legal support structure within the conservative movement. FedSoc was created essentially out of the Reagan revolution by three law students. And those three law students didn’t have the power to create something on the order of the ACLU or the NAACP. So, these three law students, with help from law school professors like Antonin Scalia, created what was essentially a debating society on various law school campuses. Today, of course, it is much more than merely a debating society. Among other things, it advises Republican presidents on whom to nominate to the federal judiciary. That is a huge power, but that does not make it an effective support structure for a litigation agenda. 

TK: But doesn’t the fact that the Federalist Society is committed to originalism bring the conservatives and libertarians together? 

JM: In a sense, the answer is clearly “yes.” The Federalist Society is indeed unified by a common commitment to originalism. But originalism is merely a theory of constitutional interpretation. It is not a substantive agenda. 

TK: You say the Federalist Society has not been terribly effective. Is Roe not an exception? 

JM: FedSoc certainly deserves at least some of the credit for overruling Roe, but it’s important to remember that Roe was decided in 1973. By the time FedSoc was created, nearly ten years later, abortion had become one of the biggest, if not the biggest, fault lines in American law and politics. In the four decades between the creation of FedSoc and the overruling of Roe, Republican presidents nominated the vast majority of the Supreme Court justices. Many of these appointees were vetted and approved by the Federalist Society. And yet it took 40 years between the creation of the Federalist Society and the overruling of Roe

By comparison, the NAACP developed its legal agenda in 1930, and it produced Brown in 1954. The Lambda Legal Defense Fund began litigating same-sex marriage issues in the mid-1990s. Lambda’s litigation campaign produced Lawrence v. Texas in 2003, and 12 years later, created the right to same-sex marriage. In other words, these liberal legal organizations took a much shorter period of time to overrule precedents and create entirely new rights, despite not advancing a particular legal theory or controlling a political party’s judicial nomination process. It is hard to call it a success when the Federalist Society and originalism take four decades merely to overrule a decision that just about everyone agreed was constitutionally illegitimate, at least as a matter of the text and history of the Fourteenth Amendment. 

TK: So, in your view, FedSoc and originalism are not responsible for the Court’s overruling Roe?

JM: They likely contributed, but I’m not sure they were the principal factors. Remember that FedSoc and originalism had been around a long time, with no progress on overruling Roe, and then all of a sudden it happens. Why? A significant factor seems to have been that, following the 2016 election, after all the turmoil among conservative elites over Donald Trump, several thinkers began questioning some of the conventional wisdom within legal conservatism, such as the power of originalism to unify and drive an effective movement. In response, some leading figures within the Federalist Society and the broader originalist movement warned that, if the Court did not overrule Roe, that would destroy the movement, because it would affirm the critics’ point that Fed Soc and originalism are not effective agents in restoring our constitutional order. That concern, driven by the critics of FedSoc and originalism, may have been a significant factor in creating Dobbs

TK: Are there not other areas where the conservative legal movement is making progress? I am thinking about efforts to dismantle the administrative state. Phillip Hamburger has recently formed what has become a significant organization, the New Civil Liberties Alliance. Might that provide the legal support structure necessary to begin to dismantle the admin state? 

JM: It may. I don’t mean to suggest that there aren’t particular applications that have been more successful than others. I think legal conservatism as a whole has failed for a lot of the reasons that I have mentioned. And I think the big issue, as we have been discussing, is that legal conservatism has been too focused on interpretive matters, principally originalism, instead of developing a particular policy/legal agenda. 

TK: The New Civil Liberties Alliance certainly has a legal agenda.

JM: The administrative state agenda is an interesting counter example, but it is very recent. Until really maybe 10, 15 years ago, legal conservatism was not focused on the administrative state, and in fact, Justice Antonin Scalia, one of the most important originalists and an early leader within the Federalist Society, was a big proponent of Chevron deference. [Chevron deference stands for the idea that judges should defer to agency interpretations of the gaps and ambiguities in the laws they implement, so long as those interpretations are reasonable.]

I do, however, wonder whether the administrative state movement is sufficiently keyed into a political agenda. It is loosely connected to the criticisms of the “deep state” that Donald Trump has brought to the fore, but it has nowhere near the political salience of the civil rights movement, or the sexual equality movement, or the gay rights movement. Each of these claimed a powerful, moral imperative to bring about change, which, as I mentioned earlier, a successful legal movement requires. I don’t think that yet applies in the movement against the administrative state. The electorate hasn’t shown much interest in slimming down the administrative state. 

TK: Even so, it looks like the Supreme Court will overturn the Chevron deference. Is that not a good start? 

JM: It may be a good start, but overruling Chevron doesn’t mean you dismantle the administrative state. Rather, it means that courts are empowered to scrutinize administrative decisions. That does not necessarily involve limiting federal power in many areas of American life.

TK: But wouldn’t the power be more transparent and closer to the people? Doesn’t that work to tame the administrative state to some degree?

JM: I’m not sure federal judges are more transparent and closer to the people than federal bureaucrats. My point is that overruling Chevron will not by itself tame the administrative state. It will simply shift some of the power from federal agencies to federal courts. Maybe it will end up limiting federal power, but that is a much bigger issue than Chevron deference itself. 

TK: You have laid out the elements of a framework for establishing a more successful movement through the courts. Can you sketch out what these elements might look like in practice? 

JM: Well, it will depend on the subject matter, but let’s go back to affirmative action as an example. First, we would need a support structure. 

TK: Are there any dealing with affirmative action? 

JM: Yes, we have actually had something of a support structure on this issue for quite a while. The Center for Individual Rights has litigated some of the major affirmative action cases, including Grutter and Gratz, the two cases out of the University of Michigan. But the Center for Individual Rights was always small. It has a small budget, perhaps $2 million, which is very small when compared to liberal support structures like the ACLU and NAACP. Nor has the Center focused exclusively, or even principally, on affirmative action cases. 

TK: How about the organization that brought the recent affirmative action case?

JM: Yes, Students for Fair Admissions. It is litigating a lot more cases on the basis of the Harvard decision, and they recently created a related group, American Alliance for Equal Right, to focus on DEI programs. The other organization operating in this space is America First Legal, which already has a budget around $40 million, and this will be devoted largely, it seems, to challenging affirmative action and DEI programs. This is significant.

TK: And what about those other two elements you mentioned that are necessary for a successful legal movement—the need for a broader political movement and a moral imperative? 

JM: Those are falling into place as well. There is a growing political movement against wokeness. We see this beginning with the Trump 2016 campaign, and it has grown as people like Ron DeSantis and Glenn Youngkin have won and governed with platforms against “wokeness.” This political movement has done a good job of incorporating moral language, such as by highlighting how some DEI programs may seem benign but are actually divisive in practice. 

TK: Finally, you are optimistic about something!

JM: Let’s just say I am cautiously optimistic on this point. We have to keep in mind that DEI has insinuated itself deeply in virtually all the major institutions in this country. DEI is so big that it is not something that can be dealt with through litigation alone. Unfortunately, there is very little precedent, that I can think of at least, of undoing something of this magnitude solely through litigation. 

The Freedom of Association 

TK: Let’s return to jurisprudence. As we have discussed, you believe diversity and discrimination are today the most powerful ideas driving constitutional jurisprudence. You have even gone so far to say these two ideas, diversity and discrimination, have swallowed the Constitution. You argue that in cases like the Masterpiece Cakeshop [where the Supreme Court ruled that a baker had the right not to make a wedding cake for a same-sex wedding] the Court had to make a strained religious liberties argument. Why “strained”? 

JM: To see what made it strained, we have to understand some basic features of religious liberties law. According to the Court’s governing Free Exercise Clause precedents, a law that burdens religious exercise is unconstitutional only if it is either not generally applicable or not religiously neutral. Colorado’s anti-discrimination law clearly satisfied both requirements, in that the law applied evenly to all public accommodations and it did not target religious entities or beliefs in any way. The Supreme Court majority, however, used some off-the-cuff comments that the Colorado Civil Rights Commission made, in the course of adjudicating Jack Phillips’s case, to render the application of Colorado’s anti-discrimination law to Jack Phillips invalid in this case.

TK: So what is the result then? 

JM: The result is that Jack Phillips won, in that he did not have to bake the cake for this couple, but in the future the Colorado anti-discrimination law could apply to identical situations so long as the Commission refrains from rhetorical excesses in enforcing the law. And that is why Jack Phillips is back in court. The Supreme Court, essentially, just kicked the can down the road, because it refused to engage what was really at issue in the case. 

TK: What was really at issue, in your opinion?

JM: I think the real issue is the freedom of association. That is the argument that would have been made, and likely would have prevailed, before the civil rights revolution. 

TK: Say the baker not only would not bake a wedding cake for a gay couple but he would not allow gays into his bakery. Should that be allowed?

JM:. Two related points on that difficult question. One, the freedom of association has diminished in direct proportion to the rise of the civil rights regime. Two, given this relationship, it may have been better, as part of the balancing and compromise I referenced earlier as being so integral to a constitutional republic, that we calibrated anti-discrimination values and associational liberties. 

TK: So how would that balance work in the hypothetical I just offered? 

JM: Well, I’m not in the business of advocating for certain policy solutions, but perhaps the balance would work by taking into account the importance of the service or product being provided and the perniciousness of the discrimination in question. Under this calibrated approach, it would have mattered, for example, that the Masterpiece case involved baked goods, far from an essential service, and this case arose in Lakewood, Colorado, a densely populated area with several nearby bakeries. That is very different from the argument made in the Masterpiece case. 

TK: Do you see this argument being made in the future?

JM: No, I don’t. Calibrating anti-discrimination values with the Constitution’s structural and liberty guarantees will come about only if we desacralize inclusion and destigmatize exclusion as moral commitments. We would have to stop thinking that something is good if it is inclusive and bad if it is exclusive. In other words, we would need to abandon the moral order created by the civil rights revolution. Given that I don’t see that happening, I don’t see how the freedom of association, or our constitutional order more generally, could be restored in any meaningful sense.