« More on Michael Dorf’s “Originalism’s Discontinuity Problem”
David Weisberg
| Main | Thank You to University of Chicago Press For Correcting William Blackstone’s Warning
Andrew Hyman »

04/27/2021

William Haun & Daniel Chen on Freedom of Assembly
Michael Ramsey

At Law & Liberty, William J. Haun and Daniel L. Chen: Where Two or Three Are Gathered (discussing Americans for Prosperity Foundation v. Rodriguez, argued to the U.S. Supreme Court on Monday).  Here is the introduction: 

... The [Americans for Prosperity] case involves two California non-profits challenging the state’s requirement that they—and every other non-profit registered in California—disclose their donors to make future law enforcement more “effective” and “efficient.” Over 40 amicus briefs lambasted this embrace of open-ended government surveillance—reflecting an ideological agreement so wide that NARAL Pro-Choice North Carolina and Wisconsin Right to Life joined the same brief. On the surface, widespread consensus in favor of associational privacy is surely welcome. But this agreement masks equally widespread, decades-long confusion over how and why the Constitution protects free association.

As the brief filed by our firm—the Becket Fund for Religious Liberty—explains, that confusion is at the core of this case, and solving it requires regrounding the right of “expressive” association at issue in the text, history, and tradition of the First Amendment’s Assembly Clause. The freedom of assembly has deep historical roots in religious assembly. This history confirms that, despite modern law’s recent emphasis on “expressive” association, assemblies do not exist simply, or even primarily, for expressive purposes. Rather, they exist primarily for formative ones. Shaping people in beliefs, traditions, rituals, customs, and ways of life—regardless of how politically “expressive” they are—requires a robust space outside the individual and the state for the freedom of assembly.

But the Supreme Court has yet to appreciate the formative core of association, nor has it clearly rooted the right of association in any constitutional provision. The result has been short shrift to the Constitution’s protection of civil society.

This case provides the Supreme Court with an ideal opportunity to reground free association in the Assembly Clause and recognize that assemblies do not simply allow individuals to express themselves. Rather, they form citizens in the virtues that make and sustain self-government.