The Framers and Associations: The Right to Assemble

If there was one element of a democratic society that Madison feared the most was the potential for violent factions, which would drive American society primarily on the basis of passions unrestrained by reason and a veneration for the rights and views of others.  As James Madison described, “By a faction I understand a number of citizens, whether amounting to a majority and a minority of the whole, who are united and actuated by some common impulse of passion, or interest, adverse to the right of other citizens, or to the permanent and aggregate interests of the community.”  By virtue of this passage alone from Federalist No. 10, we can immediately see why Madison feared factions as instruments of passion-stricken groups that could potentially infringe upon the rights of other citizens.  But it is important to note that while Madison feared faction, the methods by which he and other framers chose to deal with “factions” did not at all infringe upon their rights to assemble or associate.  In fact, Michael McConnell’s analysis theorized that the framers sought to protect the rights of all associations with the qualification that they should remain peaceful.  He is also correct asserting that the freedom to assemble is continuously being undermined into obscurity in the present day.

Madison never thought that the liberty to formulate a faction should be infringed upon.  In fact, he considered the stripping of the liberty that caused factions to generate as “…worse than the disease (of faction).  Liberty is to faction, what air is to fire, an aliment without which it instantly expires.  But it could not be less folly, to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life because it imparts to fire its destructive agency.”  But it is this liberty that lawmakers today have sought to strip in order to quell what they deem to be “extremist” or “discriminatory” views.  It can be conjectured that in the trend to strike at the liberty of certain groups’ right to assemble, regardless of the groups’ foundations, the governments at both the state and federal levels are creating the very factious majority that Madison cautioned would eventually infringe upon the rights of citizens and other minority groups.

Consider Christian Legal Society Chapterv. Martinez (2010), which was a case decided by the Supreme Court on the issue of whether or not the Hastings College of Law of the University of California (a public institution) had the right to deny recognition of a Christian-based organization as an official “student organization” since its premises did not hold the same beliefs as the college itself.  The Supreme Court’s ruling, written by Justice Ruth Bader Ginsburg, held that the university did not infringe upon First Amendment provisions and that its policy was thereby neutral and reasonable.  If Madison had reviewed this case, he would have seen it as a veiled attempt by the federal government to enable and establish one factious set of ideas and beliefs over others.  This would open up the doors for tyranny to take root. According to a speech given by Madison to the Federal Convention on Factions, Madison defended his republican view of government, “All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect.”  In other words, in the multiplicity of interests, there shouldn’t have been any need for the Supreme Court to legitimize a quelling of a particular student group’s right to assemble and associate freely in Christian Legal Society Chapterjust because their religious views didn’t conform to the secularist “nondiscriminatory” views of the Hastings College of Law and the state.  To do this would just be a repudiation of Madison’s views that warned about the dangers of factious majorities operating without a diverse field of interests and sects to compete with.

California state law, specifically regarding the Christian Legal Society Chapter case, mandated that student groups allow “…any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs,” which meant that the Christian Legal Society’s requirement that only Christians join the organization was invalid in the state of California.  The Supreme Court, in review of the case, affirmed a “beliefs assessment” that effectively forced the faith-based group to have to expand its membership and leadership requirements in order to cater to certain sets of views foreign to its own.

Madison himself didn’t legitimize such state assessments on beliefs.  As he asserted in his Memorial and Remonstrance Against Religious Assessments before the General Assembly of Virginia, “It is the duty of every man to render to the Creator such homage and such only as he believes acceptable to him…We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil society and that Religion is wholly exempt from its cognizance.”  By establishing a state assessment conducive to a “secular theocracy”, the leadership in the Christian Legal Society were forced to act against their views, and their religious beliefs in effect came under “the state’s cognizance”.  According to Wilfred McClay, “…religious freedom is not only an individual liberty but also a corporate liberty applied to and inherent in groups and protective of their integrity and self-governance.  It is the liberty of the synagogues, churches, denominations, religious schools and colleges, and other religious institutions and communities to define what they are and what they are not, to control the meaning and terms of their membership…” With each judicial ruling that establishes “secular theocracy” as the only legitimate and universal worldview, religious liberty and the rights to associate freely and assemble peacefully become nothing more than powerless parchment guarantees of freedom with a very weak force of law to protect them.

Consider also the notorious Santa Fe Independent School District v. Doe (2000)case, which involved the Supreme Court again affirming the abridging of the free exercise of religion and freedoms of association and assembly.  In the case, the Supreme Court struck down a school district’s policy that permitted (but did not require) student-initiated prayers before home varsity football games as a violation of the Constitution’s Establishment Clause, considering such prayers as sectarian.  In effect, the Court provided that only non-sectarian prayers could be initiated by students.  Justices Rehnquist, Thomas and Scalia dissenting, “noted the ‘disturbing’ tone of the Court’s opinion that ‘bristle[d] with hostility to all things religious in public life.’” The district’s policy merely allowed for the free exercise of the right to assemble for prayer, but it did not establish the practice as a requirement for any and all students. One set of “seculartheocratic” views here were given precedent over other competing views, which was an occurrence the framers feared most in a democratic society driven by factions.

Madison recognized this danger clearly in his discourse in Federalist No. 51.  Any majority or group united by a common interest with support from the national government was to be perceived as dangerous.  Security of liberty for both majority and minority groups came from the presence of a multiplicity of interests, which is the very thing the Supreme Court in both Christian Legal Society Chapterand Santa Fe Independent School District failed to uphold.  As Madison argued, “It is of great importance in a republic…to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens.  If a majority be united by a common interest, the rights of the minority will be insecure…the degree of security…will depend on the number of interests and sects…”

In essence, with regards to associations, the rights of any association will be protected only when there’s a large quantity of associations, each exercising their right to associate and assemble without infringing on others’ rights to do the same.  However, as “secular theocracy” continues to dominate policy and the courts’ jurisprudence, what ensues will essentially enable one worldview to be able to exercise its influence without any other worldviews to counter its ambitions.  Richard Samuelson notes George Washington’s perspective on the matter, “‘…its now no more that toleration is spoken of as if it were by the indulgence of one class of people that another [class] enjoyed the exercise of their inherent natural rights.’”  In other words, when groups are allowed to associate and assemble freely outside of government regulation, for example, Jews would be “…free to be Jews just as Christians were free to be Christians.”

Today’s society no longer holds this ideal to be central to policymaking. By today’s standards, every association and practice of assembly must conform in some way to the overarching views of the state, specifically with regards to adhering to its prohibitions on most kinds of what it considers to be “illicitdiscrimination.  Samuelson himself highlights that the general perception of the role of government by today’s Americans is that its purpose is to “..prevent any and all discrimination”, which has been abused significantly. Michael McConnell, writing in 2012, highlighted that 150 churches and religious groups in New York City were threatened with eviction from public buildings because they “worshiped” and did not simply practice “religious speech” as if such a distinction between the two things actually existed.  McConnell continued to cite late House member of the First Congress John Page, who noticed early on the threats to the freedom of assembly.  Page argued thatpeople have “‘…been prevented from assembling together on their lawful occasions…Therefore, it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.’”  This trend against the right of associations to assemble peacefully without infringement by government has carried over into the present day.

In the 1830s, Alexis de Tocqueville recognized the right to association as a guarantee against the auspices of tyranny, stating that if any party (or view) becomes predominant in the United States, “…all public power passes into its hands…In countries where such associations do not exist, if private people did not artificially and temporarily create something like them, I see no other dike to hold back tyranny of whatever sort, and a great nation might with impunity be oppressed by some tiny faction or by a single man.”

In essence, Michael McConnell’s ultimate assertion about the intent of the framers to protect this right to assemble for all associations is crucial not just as a guarantee of the right itself, but also as a check on tyranny.  Regardless of whatever views a certain association may espouse, be it extreme to the secularists or not, Madison, the Framers, and even Tocqueville reasoned that the multiplicity of interests and sects were pertinent to protecting any group from dominating society and wiping out other competing groups.  In the multiplicity of interests and sects, liberty is protected when the rights to associate and assemble peacefully are recognized as exempt from the “cognizance” of the state.  It is this “multiplicity” envisioned by framers such as Madison that continues to dwindle with each new federal court decision and litigation today quashing any group’s right to associate and assemble freely if it bears even a lick of “religious dogma” attached to its foundation.  The First Amendment, as ratified by the framers, explicitly protects “…the right of the people peaceably to assemble.”  We would do well to ensure that the practice of assembly, by the multiplicity of associations that practice it, remains protected from the reaches of tyranny.

Joseph

Bibliography:

Madison, James. 1999.  Federalist No. 10, quoted in James Madison Writings. Edited by Jack Rakove. New York: Literary Classics of The United States.

 Samuelson, Richard. “Who’s Afraid of Religious Liberty?”. Mosaic. August 1, 2016. Accessed April 10, 2018. https://mosaicmagazine.com/essay/2016/08/whos-afraid-of-religious-liberty/

“Christian Legal Society Chapter v. Martinez.” Oyez. Accessed April 9, 2018. https://www.oyez.org/cases/2009/08-1371

James Madison to the General Assembly of the Commonwealth of Virginia, June 20, 1785. In Church, State and Politics Washington D.C. Final Report of the 1981 Chief Justice Earl Warren Conference on Advocacy in the United States.Edited by Jaye Hensel.

 McClay, William. “ The Rise of Secular Theocracy”. Mosaic. August 15, 2016. Accessed, April 10, 2018. https://mosaicmagazine.com/response/2016/08/the-rise-of-the-secular-theocracy/

“Santa Fe Independent School District v. Doe.” Oyez. Accessed April 10, 2018. https://www.oyez.org/cases/1999/99-62

Madison, James. 1999.  Federalist No. 51, quoted in James Madison Writings. Edited by Jack Rakove. New York: Literary Classics of The United States.

 McConnell, Michael McConnell. “ Freedom by Association”. First Things. August 2012. Accessed April 10, 2018. https://www.firstthings.com/article/2012/08/freedom-by-association

 Tocqueville, Alexis de. 1969. Democracy in America. Edited by J.P. Mayer. New York: Harper Perennial Modern Classics.

2018. “Right of Association”. Justia. Accessed April 11, 2018. https://law.justia.com/constitution/us/amendment-01/10-right-of-association.html

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