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Liberty’s Refuge: The Forgotten Freedom of Assembly by John D. Inazu is published by Yale University Press.  It is available for purchase on Amazon and from Yale.  The content is also freely available on this website under a Creative Commons License.

From the Publisher

This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women’s suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions of our constitutional tradition.

Reviews

“The Framers of the Bill of Rights took care to protect not just speech, but speech in association with others, which they called ‘freedom of assembly.’  The Supreme Court, of late, has reduced this important right to a mere appendage to freedom of speech.  This important book explains why an independent right of assembly or association matters to civil liberties, and why it is in danger.”

Michael W. McConnell, Richard & Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School

“Inazu offers the most thorough survey we have of the changing conceptions of freedom of assembly in America.”

Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law, and author of A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association

“An original, important, and provocative work… Inazu writes beautifully, he has researched exhaustively, and he keeps the reader’s attention through an impressive range of topics and history…The book is a pleasure to read.”

Robert K. Vischer, Professor of Law, University of St. Thomas School of Law, and author of Conscience and the Common Good: Reclaiming the Space Between Person and State

“The First Amendment’s guarantee of ‘the right of the people peaceably to assemble’ is the neglected stepchild of modern constitutional law. John Inazu’s Liberty’s Refuge breathes new life into the clause. His careful historical and analytical reading of the clause explains it as a core component of the constitutional protections available to all individuals.”

Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

“This is a splendid act of retrieval. John Inazu argues that the courts for years have focused on the invented doctrine of ‘freedom of association,’ a doctrine that is focused narrowly on speech and easily overcome by competing state interests. As a result, a key First Amendment right—the right to peaceably assemble—has disappeared. In arguing for its return, Inazu reminds us of a strong American tradition of assembly: one that recognizes that state is not the only ‘sovereign’ in American life, that groups play a vital role in our social infrastructure, and that their meaning goes far beyond their ‘message.’ His book provides a strong challenge to current law and scholarship, and raises deep questions about the meaning of the First Amendment and the nature of society. Thoughtfully argued, beautifully written, drawing on a wealth of sources, Inazu’s book is a valuable contribution to First Amendment law and theory.”

Paul Horwitz, Gordon Rosen Professor, University of Alabama School of Law

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. —United States Constitution, Amendment I The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth an [...]

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The following pages trace the story of the freedom of assembly. This is the right of assembly “violently wrested” from slave and free African Americans in the South and denied to abolitionist William Lloyd Garrison in the North. It is the freedom recognized in tributes to the Bill of Rights across the nation as America entered the Second World War— at the very time it was denied to 120,000 Japanese Americans. It is the right placed at the core of democracy by many eminent twentieth- centur [...]

416 Comments

Perry and Boos demonstrate how some aspects of assembly have been swept within the Court’s free speech doctrine. But at least part of the reason for the forgetting of assembly has been the emergence and entrenchment of a different right: the judicially recognized right of association. The rise of this right of association in many ways depended upon surrounding political and cultural contexts, which I have divided into two eras. The national security era began in the late 1940s and lasted until [...]

46 Comments

The second constitutional era of the right of association is the equality era, which began in the mid-1960s. It includes the transformation of the right of association into intimate and expressive components in Roberts v. United States Jaycees. As I suggested at the end of the previous chapter, this transformation in some ways took its cues from the foundations established during the national security era. But the equality era also introduced its own political, jurisprudential, and theoretical f [...]

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This book has recounted the histories of the rights of assembly and association in American constitutionalism and suggested that the shift from assembly to association has weakened protections for dissenting, political, and expressive groups. The historical narrative closed with two of the most recent casualties of this shift: the Chi Iota fraternity at the College of Staten Island and the Christian Legal Society at Hastings College of the Law. These cases illustrate that we have failed to groun [...]

45 Comments

This book has traced the history of the constitutional protections accorded to groups, beginning with the freedom of assembly in the Bill of Rights and culminating with what I have characterized as a weak right of association that emerged in the middle of the twentieth century and was refashioned a generation later. I have argued that American constitutionalism—as embodied by the people of this country even if not always in the opinions of the Supreme Court—has always recognized the importan [...]

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Chapter 1. Overview of the Argument 1. Abraham Lincoln, Uncollected Letters of Abraham Lincoln, ed. Gilbert A. Tracy (New York: Houghton Mifflin, 1917), 127. John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 53. Rawls usually refers to association rather than assembly in his later work. See, e.g., John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 221 n.8, 291, 338, 418. But see ibid., 335 (mentioning assembly). Fra [...]

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