ALGUNAS DEFINICIONES CONCEPTUALES BÁSICAS.

In the preceding chapter, I recounted the forgotten story of the freedom of assembly in American political and legal discourse. At least part of the reason for the loss of assembly has been the emergence and entrenchment of the judicially recognized right of association. I turn my attention to the development of that right in this chapter and the one that follows. The rise of constitutional association in many ways depended upon surrounding political and cultural contexts. I have divided these contexts into two eras. The first, which I call the national security era, began in the late 1940s and lasted until the early 1960s. It formed the background for the initial recognition of the right of association in NAACP v. Alabama.1 This is the subject of the present chapter. The second, which I call the equality era, spanned from the early 1960s to the end of the twentieth century and included an important reinterpretation of the right of association in Roberts v. United States Jaycees.2 I address the equality era in the next chapter.

In the national security era, three factors 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

1_{NAACP v. Alabama, 357 U.S. 449 (1958).}

2_{Roberts v. United States Jaycees, 468 U.S. 609 (1984). Roberts divided the right of} association into intimate and expressive components and introduced the constitutional framework that continues today.

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).

The primary political factor that influenced the right of association emerged from the historical coincidence of the Second Red Scare and the Civil Rights movement. From the late 1940s to the early 1960s, the government’s response to the communist threat pitted national security interests against individual and group autonomy. These tensions were mimicked (albeit somewhat artificially) in the South when segregationists

analogized the unrest stirred by the NAACP to the threats posed by communist organizations; segregationists even charged that the NAACP itself was infiltrated by communist influences. The Supreme Court responded unevenly, suppressing communist organizations in the name of order and stability but protecting the NAACP.

The jurisprudential factor shaping the right of association involved disagreement on the Court over the constitutional source of association. The issue was most evident when the Court applied the right of association to limit state (as opposed to federal) law. Justices Frankfurter and Harlan argued that association constrained state action because it, like other rights, could be derived from the “liberty” of the Due Process Clause of the Fourteenth Amendment. I refer to this as the liberty argument. Justices Black, Douglas, Brennan, and Warren insisted that association could be located in some aspect of the First Amendment and argued that it be given the same “preferred position” as other First Amendment rights. On their view, the right of association applied to the states because the Fourteenth Amendment had incorporated the provisions of the First Amendment. I call this the incorporation argument. At times, Black and Douglas also argued that the

right of association was part of the right of assembly. I call this the assembly argument. Although it received only minimal attention from the justices, the assembly argument may have offered the most sensible and least complicated constitutional link for the right of association. Instead, disagreement between the justices over the liberty argument and the incorporation argument framed the legal discussion that in turn shaped the right of association. As I will show, this disagreement is evident in the Court’s 1957 decision in Sweezy v. New Hampshire.3 Harlan’s opinion in NAACP v. Alabama can be read in part as an attempt to accommodate the tensions raised in Sweezy. But his ambiguous wording left the doctrinal framing of association open to interpretation.

The theoretical factor influencing the shaping of association was mid-twentieth century liberalism. Constitutional association developed within an already narrowed discourse that began with pluralist claims about the relationship between groups and the state. Arthur Bentley and Harold Laski advanced early versions of these claims during the first half of the twentieth century. Postwar pluralists like David Truman and Robert Dahl popularized them in the 1950s and 1960s. Two pluralist assumptions aided the embrace of the constitutional right of association: the balance and stability between groups, and the “liberal consensus” of American politics. Truman and Dahl supported these premises through appeals to the two great theorists of association in the American context: James Madison and Alexis de Tocqueville. The pluralist claims and their attendant interpretations of Madison and Tocqueville helped establish a theoretical background that qualified group autonomy by the interests of the democratic state.

It is my contention that the above three factors contributed to three changes detrimental to group autonomy that can be linked to the shift from assembly to

association: (1) dissenting and destabilizing groups protected by the right of assembly were rejected by a right of association predicated upon a bounded consensus; (2) practices that constituted public and political life in the context of the right of assembly were depoliticized and privatized by a right of association that developed among a dispersion of public power and a narrowing of the scope of what comprised the political; and (3) assemblies that were forms of expression were replaced by associations that were merely means of expression. My objective in this chapter and the one that follows is simply to illustrate the plausibility of these changes and their connection to the shift from assembly to association. In Chapter 4, I will explore the implications of these changes when I compare the right of assembly to the right of association using the contours of contemporary political theory.