Factions for the Rest of Us

Abstract:     
This essay responds to essays by Professors Ashutosh Bhagwat, Susan Appleton, and Robert Vischer on my book Liberty’s Refuge: The Forgotten Freedom of Assembly. The essays were presented at a March 2012 discussion hosted by Washington University School of Law that included additional presentations from Gregory Magarian, Bernadette Meyler, Ian MacMullen, and Neil Richards.

I had three objectives in writing Liberty’s Refuge, one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. The normative theory contends that we ought to protect dissenting private groups even at the cost of stability and uniformity. The diagnostic, historical, and normative arguments are interrelated: the normative claim is strengthened by the weight of history and the weaknesses of the current doctrine. But even if I am right on the history and doctrine, the normative argument must attract some salience and support in order to be plausible under the kind of constitutional reasoning that underlies today’s First Amendment jurisprudence.

The three essays to which this essay responds offer generous engagement with and thoughtful critiques of my arguments. Professor Bhagwat questions my reliance on expressionism to ground assembly and raises concerns about the boundaries of peaceable assembly. Professor Appleton suggests ways that I have neglected feminist arguments and also questions the role of government funding in my constitutional analysis. Professor Vischer pushes on my distinction between commercial and noncommercial groups. My response offers some tentative thoughts on these challenges and highlights related arguments in Liberty's Refuge.

Number of Pages in PDF File: 24

Keywords: First Amendment, freedom of assemby, political theory, intimate association, expressive association

Accepted Paper Series