This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women's suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions of our constitutional tradition.
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THE FORGOTTEN FREEDOM OF ASSEMBLY
By John D. Inazu
Yale UNIVERSITY PRESSCopyright © 2012 John D. Inazu
All rights reserved.
OVERVIEW OF THE ARGUMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. —United States Constitution, Amendment I
The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and the New Deal, and the Civil Rights Movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the Second Red Scare of 1950s' McCarthyism. Abraham Lincoln once called "the right of the people peaceably to assemble" part of "the Constitutional substitute for revolution." In 1939, the popular press heralded assembly as one of the "four freedoms" central to the Bill of Rights. Even as late as 1973, John Rawls characterized it as one of the "basic liberties." But in the past thirty years, the freedom of assembly has become little more than a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? And, as important, what has been lost with the loss of assembly?
One might, with good reason, think that the right of assembly has been subsumed into the rights of speech and association and that these two rights adequately protect the boundaries of group autonomy. On this account, contemporary free speech doctrine guards the best-known form of assembly—the occasional, temporal gathering that often takes the form of a protest, parade, or demonstration. Meanwhile, the right of association, or, more precisely, the right of expressive association, shelters assemblies that extend across time and place—groups like clubs, churches, and civic organizations. In other words, the free speech framework focuses on the message that a group conveys at the moment of its gathering (the words on a placard, the shouts of a protester, the physical presence of a sit-in), while the expressive association framework focuses on the group that enables a message by ensuring that people can "associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion."
The idea that the rights of speech and association adequately guard the groups that the right of assembly might otherwise have protected is not implausible, and a number of scholars appear to have adopted it. Indeed, most modern constitutional arguments involving questions of group autonomy invoke the right of expressive association. Andrew Koppelman, a well-respected constitutional scholar, has argued that expressive association has come to represent "a well-settled law of freedom of association," an "ancien regime."
I believe that this turn to speech and association to protect the boundaries of group autonomy—and therefore pluralism and dissent—is misguided. The central argument of this book is that something important is lost when we fail to grasp the connection between a group's formation, composition, and existence and its expression. Many group expressions are only intelligible against the lived practices that give them meaning. The rituals and liturgy of religious worship often embody deeper meaning than an outside observer would ascribe to them. The political significance of a women's pageant in the 1920s would be lost without knowing why these women gathered. And the creeds and songs recited by members of groups ranging from Alcoholics Anonymous to the Boy Scouts reflect a way of living that cannot be captured by a text or its utterance at any one event.
The right of expressive association elides this connection between a group's practices and its message. Consider the following examples: a gay social club, a prayer or meditation group, and a college fraternity. Each of these groups conveys a message by its very existence. Each of these groups bears witness to a social practice that, to varying degrees and at various times, disrupts social norms and consensus thinking. Those sound like important First Amendment interests. But none of these groups qualifies as an expressive association—none of these groups is "expressive enough" under current constitutional doctrine.
What is more, even when the right of expressive association does show up, it doesn't offer very rigorous protections, at least when confronted with antidiscrimination norms. Civic organizations, social clubs, and religious student groups have all been found to be expressive associations— and all have been left utterly unprotected by the right of expressive association. The Ninth Circuit recently illustrated this trend—and the logical end of antidiscrimination norms unchecked by principles of group autonomy—in the reasoning underlying its denial of constitutional protections to a high school Bible club that sought to limit its membership to Christians: "States have the constitutional authority to enact legislation prohibiting invidious discrimination.... We hold that the requirement that members [of a high school Bible club] possess a 'true desire to ... grow in a relationship with Jesus Christ' inherently excludes non-Christians ..., [thus violating] the District's non-discrimination policies." In other words, a Christian group that excludes non-Christians is for that reason invidiously discriminating.
There is another problem with the right of association—it is not actually in the text of the Constitution. This will come as a surprise to some, including dozens of federal judges and their law clerks who have referred to a nonexistent "freedom of association clause" in the First Amendment. Look again at the epigraph to this introductory chapter—there is no such clause. In fact, the right of association was absent from our constitutionalism for most of our nation's history—the Supreme Court first announced it in its 1958 decision NAACP v. Alabama ex rel. Patterson.
Of course, any written document requires some level of interpretation, and the Supreme Court has long recognized other rights not in the text of the Constitution, most notably a right to privacy. But unlike privacy, association has an obvious antecedent in the text of the Constitution: the right of assembly. We should not supplant assembly with the invented right of association—or at least the version of that right that the Court has embraced over the past fifty years—without understanding why we have done so and what we have given up in the process.
This book offers assembly as an alternative to the enfeebled right of expressive association. The history of assembly reveals four principles that help us see its contours and its contemporary applications. First, assembly extends not only to groups that further the common good but also to dissident groups that act against the common good. Second, this right extends to a vast array of religious and social groups. Third, just as the freedom of speech guards against restrictions imposed prior to an act of speaking, assembly guards against restrictions imposed prior to an act of assembling—it protects a group's autonomy, composition, and existence. Fourth, assembly is a form of expression—the existence of a group and its selection of members and leaders convey a message. Collectively, these four principles counsel for strong protections for the formation, composition, expression, and gathering of groups, especially those groups that dissent from majoritarian standards.
The judicially recognized right of association advances neither these principles nor the values that underlie them. The shift in the constitutional framework from assembly to association (1) diminished protections for dissenting and destabilizing groups; (2) marginalized political practices of these groups by narrowing the scope of what counts as "political"; and (3) obscured the relationship between the practices and expression of these groups. The forgetting of assembly and the embrace of association thus marked the loss of meaningful protections for the dissenting, political, and expressive group.
While today's cultural and legal climate raises the most serious challenges to practices at odds with liberal democratic values, the eclectic collection of groups that have been silenced and stilled by the state cuts across political and ideological boundaries. The freedom of assembly once opposed these incursions. As C. Edwin Baker has argued: "The function of constitutional rights, and more specifically the role of the right of assembly, is to protect self-expressive, nonviolent, noncoercive conduct from majority norms or political balancing and even to permit people to be offensive, annoying, or challenging to dominant norms."
But the social vision of assembly does more than enable meaningful dissent. It provides a buffer between the individual and the state that facilitates a check against centralized power. It acknowledges the importance of groups to the shaping and forming of identity. And it facilitates a kind of flourishing that recognizes the good and the beautiful sometimes grow out of the unfamiliar and the mundane. Indeed, almost every important social movement in our nation's history began not as an organized political party but as an informal group that formed as much around ordinary social activity as extraordinary political activity. We lose more than the shared experience of cheese fries and cheap beer when we bowl alone.
Recovering the vision of assembly remains an urgent task. In June 2010, the Court dealt a twofold blow to the principles of group autonomy by relying on attenuated conceptions of the rights of speech and association. In Holder v. Humanitarian Law Project, the Court curtailed in the name of national security interests the right of individuals to associate with and advocate on behalf of certain foreign political groups. And in Christian Legal Society v. Martinez, the Court relied on a muddied area of free speech doctrine to deny the right of a religious student group to limit its membership to those of its choosing, the right to retain control over its own message—the right to exist.
Holder and Martinez hinder the group autonomy upon which democracy depends. As Stephen Carter has argued, "Democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic." Beginning from a very different perspective, William Eskridge arrives at a similar conclusion: "The state must allow individual nomic communities to flourish or wither as they may, and the state cannot as a normal matter become the means for the triumph of one community over all others." The Court's doctrinal reliance on the right of association in Holder and the right of speech in Martinez ignores the important views that Carter and Eskridge raise.
Holder and Martinez are lamentable, but they are unsurprising. They reflect the unprincipled development of the Court's approach to questions of group autonomy over the past fifty years. This book proposes an alternative. It tells a different story about the constitutional protections for groups and argues that we need to reinvigorate these protections. The following pages provide an overview of the next four chapters: (1) the history of the right of assembly; (2) the invention of the right of association in the 1950s and 1960s; (3) the transformation of the right of association in the 1970s and 1980s; and (4) a theory of assembly.
The Right Peaceably to Assemble
There has been some debate as to whether "the right of the people peaceably to assemble, and to petition the government for a redress of grievances" in the First Amendment recognizes a single right to assemble for the purpose of petitioning the government or establishes both an unencumbered right of assembly and a separate right of petition. Contrary to interpretations advanced in some scholarship, the text of the First Amendment and the corresponding debates over the Bill of Rights suggest that the framers understood assembly to encompass more than petition. The first groups to invoke the freedom of assembly also construed it broadly. At the end of the eighteenth century, the Democratic-Republican Societies emerging out of the increasingly partisan divide between Federalists and Republicans repeatedly invoked the right of assembly. During the antebellum era, policymakers in southern states recognized the significance of free assembly to public opinion and routinely prohibited its exercise among slaves and free blacks. Meanwhile, female abolitionists and suffragists in the North organized their efforts around a particular form of assembly, the convention. As Akhil Amar has observed, the nineteenth-century movements of the disenfranchised brought "a different lived experience" to the words of the First Amendment's assembly clause. They were political movements, to be sure, but they embodied and symbolized even larger societal and cultural challenges.
At the end of the nineteenth century, the Supreme Court misconstrued the text of the First Amendment in suggesting that the right of assembly was limited to the purposes of petitioning for a redress of grievances. But while some commentators accepted this narrow interpretation, state courts interpreting parallel state constitutional provisions of assembly articulated far broader protections. This more expansive sense of assembly was also represented in three social movements during the Progressive Era: a revitalized women's movement, a surge in political activity among African Americans, and an increasingly agitated labor movement.
The Supreme Court made the federal right of assembly applicable to the states in its 1937 opinion De Jonge v. Oregon. The newly expanded right gained traction in subsequent cases. But these advances proved evanescent, and later cases involving the rights of "speech and assembly" routinely resolved the latter within the framework of the former. Although the right of assembly remained important in several decisions overturning convictions of African Americans who participated in peaceful civil rights demonstrations in the 1960s, courts resolved most cases involving group autonomy without considering assembly. The Supreme Court, in fact, has not addressed an assembly claim in thirty years.
The Right of Association in the National Security Era
Around the time that assembly began falling out of political and legal discourse, the Supreme Court shifted its constitutional focus to a new concept: association. The development of the constitutional right of association—and with it, the disappearance of assembly—in many ways depended upon surrounding contexts. I divide these contexts into two eras. The first, which I call the national security era, began in the late 1940s and lasted until the early 1960s. It formed the background for the Court's initial recognition of the right of association in NAACP v. Alabama. The second, which I call the equality era, began in the 1960s and included an important reinterpretation of the right of association in Roberts v. United States Jaycees.
Political, jurisprudential, and theoretical factors shaped the right of association in each of these eras. In the national security era, the primary political factor was the historical coincidence of the Second Red Scare and the Civil Rights Movement. From the late 1940s to the early 1960s, the government's response to the communist threat pitted national security interests against group autonomy. Segregationists in the South capitalized on these tensions by analogizing the unrest stirred by the NAACP to the threats posed by communist organizations; segregationists even charged that communist influences had infiltrated the NAACP. The Supreme Court responded unevenly, suppressing communist groups in the name of order and stability but extending broad protections to civil rights groups.
The jurisprudential factor shaping the right of association involved disagreement on the Court over the constitutional source of that right. This disagreement was most evident when the Court applied the right to limit state (as opposed to federal) law. Justices Frankfurter and Harlan argued that association constrained state action because like other rights, it could be derived from the "liberty" of the Due Process Clause of the Fourteenth Amendment. Justices Black, Douglas, Brennan, and Warren insisted that association was located in some aspect of the First Amendment and argued that it be given the same "preferred position" as other First Amendment rights. On their view, association applied to the states because the Fourteenth Amendment had incorporated the provisions of the First Amendment. These differences encompassed not only the source of the constitutional limits on state action but also the extent of those limits. For Black, the rights in the First Amendment were "absolute" and could not be restricted by state action. Frankfurter argued instead for a "balancing" that weighed the interests of the government against the liberty of the Fourteenth Amendment. The result of these two perspectives was that the Court was more likely to uphold a state law restricting expressive freedom if it followed the liberty argument and more likely to strike down the law if it followed the incorporation argument.
Excerpted from LIBERTY'S REFUGE by John D. Inazu. Copyright © 2012 by John D. Inazu. Excerpted by permission of Yale UNIVERSITY PRESS.
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Table of Contents
Chapter l Overview of the Argument 1
Chapter 2 The Right Peaceably to Assemble 20
Chapter 3 The Emergence of Association in the National Security Era 63
Chapter 4 The Transformation of Association in the Equality Era 118
Chapter 5 A Theory of Assembly 150