Liberty's Refuge

Liberty's Refuge

John D. Inazu
Copyright Date: 2012
Published by: Yale University Press
Pages: 288
https://www.jstor.org/stable/j.ctt1nptd9
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  • Book Info
    Liberty's Refuge
    Book Description:

    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.

    eISBN: 978-0-300-17637-7
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-xii)
  4. CHAPTER 1 OVERVIEW OF THE ARGUMENT
    (pp. 1-19)

    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...

  5. CHAPTER 2 THE RIGHT PEACEABLY TO ASSEMBLE
    (pp. 20-62)

    The following pages trace the story of the freedom of assembly. This is the right of assembly “violently wrested” from slave and free African Americans in the South and denied to abolitionist William Lloyd Garrison in the North. It is the freedom recognized in tributes to the Bill of Rights across the nation as America entered the Second World War—at the very time it was denied to 120,000 Japanese Americans. It is the right placed at the core of democracy by many eminent twentieth-century Americans, including Dorothy Thompson, Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles, and Eleanor Roosevelt....

  6. CHAPTER 3 THE EMERGENCE OF ASSOCIATION IN THE NATIONAL SECURITY ERA
    (pp. 63-117)

    PerryandBoosdemonstrate how some aspects of assembly have been swept within the Court’s free speech doctrine. But at least part of the reason for the forgetting of assembly has been the emergence and entrenchment of a different right: the judicially recognized right of association. The rise of this right of association in many ways depended upon surrounding political and cultural contexts, which I have divided into two eras. Thenational security erabegan in the late 1940s and lasted until the early 1960s. It formed the background for the initial recognition of the right of association inNAACP...

  7. CHAPTER 4 THE TRANSFORMATION OF ASSOCIATION IN THE EQUALITY ERA
    (pp. 118-149)

    The second constitutional era of the right of association is the equality era, which began in the mid-1960s. It includes the transformation of the right of association into intimate and expressive components inRoberts v. United States Jaycees. As I suggested at the end of the previous chapter, this transformation in some ways took its cues from the foundations established during the national security era. But the equality era also introduced its own political, jurisprudential, and theoretical factors that influenced associational freedom. This chapter focuses on three of these factors, each of which further contributed to the decline of the...

  8. CHAPTER 5 A THEORY OF ASSEMBLY
    (pp. 150-184)

    This book has recounted the histories of the rights of assembly and association in American constitutionalism and suggested that the shift from assembly to association has weakened protections for dissenting, political, and expressive groups. The historical narrative closed with two of the most recent casualties of this shift: the Chi Iota fraternity at the College of Staten Island and the Christian Legal Society at Hastings College of the Law. These cases illustrate that we have failed to ground protections for group autonomy in an intellectually honest constitutional framework and have relied instead on artificial distinctions and unexamined premises. Because these...

  9. CONCLUSION
    (pp. 185-186)

    This book has traced the history of the constitutional protections accorded to groups, beginning with the freedom of assembly in the Bill of Rights and culminating with what I have characterized as a weak right of association that emerged in the middle of the twentieth century and was refashioned a generation later. I have argued that American constitutionalism—as embodied by the people of this country even if not always in the opinions of the Supreme Court—has always recognized the importance of the dissenting, political, and expressive group. The modern right of association, in contrast, has lost sight of...

  10. NOTES
    (pp. 187-252)
  11. INDEX
    (pp. 253-275)