The Strange Origins of the Constitutional Right of Association

Abstract

Although much has been written about the freedom of association and its ongoing importance to American constitutionalism, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components. Roberts’s doctrinal framework has been rightly criticized. However, neither the right of association nor all of its doctrinal problems start there. The Supreme Court’s foray into the constitutional right of association began a generation earlier with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

This article offers a new look at the Court’s initial approach to the right of association. It highlights three factors that influenced the development of the right 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 Constitutional grounding of the right of association and the relationship between association and assembly - a jurisprudential factor; and (3) the pluralist political theory of mid-twentieth century liberalism, which emphasized the importance of consensus, balance, and stability - a theoretical factor. It explores these factors, their relationship to one another, and the ways in which they influenced the right of association’s ambiguous constitutional anchor and ill-defined doctrinal framework. These early contours of the right of association paved the way for its reformulation in Roberts. If today’s freedom of association is inadequate, the roots of that inadequacy may lie in the political, jurisprudential, and theoretical factors that were present at its inception.

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