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Abstract:
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 after 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 it as one of the 'four freedoms' at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the 'basic liberties'. But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.

Freedom of assembly, freedom of association, First Amendment, legal history, political theory

Abstract:
Although much has been written about the freedom of association and its ongoing importance to the American experiment, much recent scholarship mistakenly relies on a truncated history that begins Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components and introduced the paradigm that continues today. Roberts’s doctrinal framework has been rightly criticized. But neither the right of association nor all of its doctrinal problems start with Roberts. The Court’s foray into the constitutional right of association began a generation earlier, in its 1958 decision, NAACP v. Alabama. This Article offers a new look at the Court’s initial approach to the right of association. I highlight three factors that influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor). I suggest how these factors shaped a right of association with an ambiguous constitutional anchor and an ill-defined doctrinal framework. Despite its shortcomings, the right of association quickly took hold in legal and political discourse and handed the Court a resource that has arguably become more responsive to political pressure than constitutional principle. Part of that whimsicality stems from the Court’s reformulation of the right of association in Roberts. But Roberts cannot bear all of the blame. If today’s freedom of association is less than we might like it to be, the roots of its problems may lie in the political, jurisprudential, and theoretical factors present at its inception.

right of association, First Amendment, incorporation, pluralism, legal history, constitutional law, political theory

Abstract:
The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including legal forgiveness), while not without a normative function, cannot effectuate either personal or political forgiveness, and (3) personal forgiveness requires a shared narrative framework to lead to political forgiveness. These assertions lead to two further observations. First, because the state has a normative role in its (limited) capacity to forgive on its own behalf and a practical role in its ability to spread and to transmit a shared narrative framework, the state has an important place in political forgiveness. Second, because the primary historical example of political forgiveness in transitional justice is the South African Truth and Reconciliation Commission that unfolded within an explicitly Christian theological framework, it may be that the shared narrative framework need be religious or even Christian in nature.

Abstract:
The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also left lower courts without a workable test for evaluating regulations affecting this form of speech: the Eighth and Tenth Circuits interpret Schaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been 'unclear' about the appropriate standard. I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation. My approach is cognizant of the matters of public concern advanced both directly and indirectly through charitable solicitation. I conclude that a balancing of interests offers a more appropriate review of charitable solicitation regulation than the cumbersome formulations arising out of the Schaumburg trilogy.

First Amendment, charitable solicitation, commercial speech, content neutrality, speaker-based interests