Why association?

Abstract

In this paper, I want to consider the reasons why the Constitution of the United States has been interpreted to protect a right to freedom of association, and what implications those reasons have for the contours of that right. To understand why this is in fact a difficult and interesting question, however, one must also understand the basic history and background of the association right in the United States. The starting point for this analysis is that, unusually among national constitutions, the Constitution of the United States does not contain a textual right of association. Instead, the First Amendment to the Constitution, in addition to provisions dealing with religion, protects rights to the freedoms of speech and the press, to peaceable assembly, and to petition the government for a redress of grievances. The question then becomes, how did this text come to be read to protect association as well. Part 1 will explore the historical roots of the right of association in the US, focusing on a conflict over association in the very early Republic. Part 2 will explain how the modern right of association was developed by the US Supreme Court, and describe in broad terms the current contours of that right. Part 3 will explore the theoretical underpinnings of the association right in the United States, tying its historical origins and purposes to the other political rights protected by the First Amendment to the US Constitution. Part 4 will consider the implications of all of the above for the specific problem of associations that discriminate on the basis of protected characteristics such as race, sex, religion, or sexual orientation in selecting their membership. And Part 5 will examine the issue of whether, and to what extent, US law should and does protect associations whose goals are inconsistent with democratic values