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Freedom of assembly is at the core of the American spirit, but it’s being usurped.

Freedom of assembly is so integral to the American spirit that it was almost omitted from the United States Constitution because it was so obvious. Today, it’s hardly remembered.

Since the 20th century, the ever-expanding federal government has subjugated this First Amendment right under its ever-growing power, kneecapping the founders’ intent.

The freedom of assembly, or the right of association, is the right of the people to come together over shared values. This idea predates the Constitution. The founders intended the political realm to be subject to the right of association, not the other way around. 

The idea of association is often overlooked as discussions focus on other First Amendment freedoms: speech, press, and religion. The founders didn’t emphasize its importance because it seemed so obvious. Today, it’s slipped from the American psyche because the state has absorbed its role—but not its effectiveness.

In a recent webinar, “Sorely Needed Help for the Associative Right,” hosted by The Center for Civil Society, Dr. Luke Sheahan shared his research on freedom of assembly, elucidating its origins, its centrality to the American way of life, and its relationship with today’s bodied politics.

Sheahan is an Assistant Professor in the Department of Political Science at Duquesne University and the author of Why Associations Matter: The Case for First Amendment Pluralism. “Associations do not just enable self-government,” Sheahan says. “They are self-government.”

When early settlers arrived in America in the 1600s, they founded townships. Their loyalties were not to the colony—and certainly not to London—but rather to their townships and their churches.

Sheahan says that the colonies’ frustration with London is well-known today, but what’s forgotten is that rural areas in Massachusetts, for example, were equally exasperated with Boston. Townships elected representatives to go to Boston, then sent someone else with them to make sure they voted the right way. At times, these townships even refused to pay taxes or send representatives to Boston because that’s not where their loyalty rested.

Alexis de Tocqueville famously recognized American self-governance in the early 1800s, but by the time he showed up, Americans had been demonstrating it for 200 years. These roots were growing a century and a half before Jefferson ever penned the words “unalienable rights.”

The idea of association was so fundamental to the founders that they did not want to include it in the First Amendment. It was, if you will, self-evident. William Penn would eventually prevail in his argument that free assembly is so foundational that it should be included. Otherwise, every other right is at risk of encroachment. Penn, a Quaker, had experienced what happens when the freedom to assemble is violated.

While the founders ultimately decided to include the freedom to assembly in the Constitution, their greatest fear would be realized in the 20th century.

Sheahan argues that the administrative state does not grow by creating new powers but rather by taking what associations had historically done. What families, churches, and neighborhoods used to do, the state now does. But the state by its nature does poorly what associations did well.

This power grab by the state has changed the way citizens imagine associations, and diminished the definition of assembly to something confined to the political realm. Associations are now seen as entities that help communicate to make democracy work. But that view, according the Sheahan, cheapens the real power, authority, and function of associations envisioned and practiced by the founders.

The courts have further diminished the freedom of assembly in rulings like Roberts v. U.S. Jaycees (1984). Here, the court took the right of association and put it under the speech clause of the First Amendment, completely ignoring the right of assembly as its own, stand-alone clause. The ruling protects only expressive association, which is the participation of associations in politics. Sheahan says this narrow definition significantly diminishes the right of association as something that relates, rather than precedes, politics, as it was initially designed.

Today, most people accept the notion that in exchange for tax-exempt status, nonprofits will remain silent on political matters. This is laid out in the Tax Code, which reads, “No substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation and which does not participate in or intervene in including the publishing and distributing of statements in any political campaign on behalf of or in opposition to any candidate for office.”

Sheahan says that in the 1930s and ’50s politicians grew increasingly tired of the criticism they were receiving from associations, so Congress passed legislation that prohibited associations from criticizing them. This essentially made associations a government subsidy that came with strings attached.

While the founders intended civil societies to be first in priority, these associations have been severely limited by the reach of big government. Associations today operate in respect to government, which was never the plan.

“You are not to subsidize our civil society institutions,” Sheahan says of Congress. “You are to rightly recognize that they are our primary associations.”

For associations to return to their true intent, as enumerated in the First Amendment, they must take back the role in society that government has absorbed. But, in order to do that, we the people must first recognize that it was stolen.

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