Recovering the Assembly Clause
Zick, Timothy, Texas Law Review
Recovering the Assembly Clause LIBERTY'S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY. By John D. Inazu. New Haven, Connecticut: Yale University Press, 2012. 288 pages. $55.00.
I recall driving to work one day several years ago and listening to a radio program on which listeners were invited to call in and test their basic knowledge of the First Amendment. The challenge was to name four of the freedoms listed in the First Amendment, or alternatively to identify the last names of four characters from the animated television show The Simpsons. It was a small sample, to be sure, but to both my amusement (as a commuter) and horror (as someone who teaches and writes about the First Amendment) every caller was far more successful naming Simpsons characters than identifying First Amendment freedoms.
As I recall, not a single caller mentioned the right "peaceably to assemble."1 After reading John Inazu's book, Liberty's Refuge: The Forgotten Freedom of Assembly, the reasons for this collective memory loss are clearer. As Inazu explains, the freedom of assembly has languished in exile for many decades. Inazu takes the reader on the Assembly Clause's fateful journey, from its prominence in the early republic,2 to its 1939 New York World's Fair glory,3 to its eventual desuetude.4 He expertly recounts how historical, political, intellectual, and jurisprudential forces transformed a seemingly clear constitutional guarantee into an also-mentioned right that occasionally plays second fiddle to freedom of speech. Inazu complains that the once-venerable "freedom of assembly" has been eclipsed and replaced by a judicially constructed, and doctrinally constricted, freedom of "expressive association."5 As Inazu notes, the Supreme Court has not explicitly based a decision on the Assembly Clause in three decades.6
In Liberty's Refuge, Inazu ably comes to assembly's defense. His account sheds new light on the history and constitutional metamorphosis of a critical but now largely forgotten First Amendment freedom. That alone makes the book well worth reading. However, there is much more in the book than exegesis and excavation. Inazu seeks not only to rediscover assembly, in the sense of explaining what happened to it, but also to recover it in a manner that gives it contemporary relevance and force. He argues that a robust freedom of assembly ought to protect the formation, composition, and expression of groups.7 Inazu makes some provocative claims, in the best sense of that term. He pushes back against prevailing equality norms and principles that tend to cast groups like the Boy Scouts of America and the Christian Legal Society as illiberal villains.8 He forces readers to grapple with some uncomfortable questions regarding the limits of group autonomy in a liberal democracy. He asks whether a truly robust freedom of peaceable assembly ought to shelter even some racially exclusionary groups.9
I share Inazu's desire to return the freedom of peaceable assembly to something like its former glory. In Liberty's Refuge, however, Inazu's focus on the rise of expressive association and its relation to a few notable groups dominates the analysis to such an extent that the full import of a rediscovered freedom of assembly may remain somewhat obscured. My principal suggestion is that we try to recover assembly in the fullest and most robust possible sense. To that end, although I will make some critical observations, my Review will also clarify and amplify several of Inazu's central claims. If we can think of the Assembly Clause as an artifact or relic, Inazu has unearthed and exposed it to the light of day. While praising this effort, I want to suggest how we might pull the Assembly Clause fully from the ground.
Part I describes Inazu's account of the freedom of assembly and his central claims. In Part II, I address some concerns regarding interpretive methodology and the substantive implications of the book's principal focus on illiberal and potentially dangerous assemblies. …