The Constitutional Right of Self-Government

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the “right of the people peaceably to assemble” has been described even by its friends as “forgotten,” a “historical footnote in American political theory and law.” Not once over the past thirty years has the Clause been the subject of the Supreme Court’s attention. Instead, like a sleep-deprived parent of quadruplets, the Court has consistently muddled the right to assemble with “the First Amendment’s other guarantees of free expression.” The Court has not been alone in treating the Assembly Clause as redundant. From the day that Congress first debated putting the right to assemble into the Constitution, critics have asked why, if the Constitution protects the freedom of speech, anyone would “think it necessary, at the same time, to allow the right of assembling?” This question goes well beyond the First Amendment: forty-seven state constitutions also have assembly clauses, four of which predate the 1789 version. This Article offers a surprising answer. For over one hundred years before the First Amendment was drafted, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This rhetorical right first emerged to combat a seventeenth-century attempt by the British Crown to eliminate the town meetings and provincial assemblies by which the colonists had long legislated on their own behalf. Decades later, when the British government again attempted to restrict the powers of America’s local and provincial assemblies, colonial activists again responded by invoking their right to assemble their own governments and to use those governments’ powers to redress their grievances. By the time the American colonists drafted their first assembly clauses in the 1770s, the right to assemble was thus invoked to defend not merely the act of assembling, but also the assemblies that could exercise coercive legal powers to solve their constituents’ problem. In other words, the state and federal assembly clauses were interpreted to protect not a redundant right of expression, but a novel right of self-government. This Article describes the history of how American colonists first developed and constitutionalized the right to assemble. It argues that the right to assemble was invoked as a right to meaningfully participate in enacting needed legislation, whether directly, by representative, or by the threat of coercive behavior. Although the Article does not adopt the originalist position that the original intent or public meaning of this right has been permanently fixed into the constitutional order, it does argue that the historical context surrounding the early assembly clauses uncovers untapped possibilities for how the federal and state assembly clauses could be interpreted in the present. In an era when politicians choose their voters, millions of taxpayers are formally or effectively disenfranchised, and countless representative governments are inhibited from redressing their constituents’ grievances, revitalizing a constitutional protection of self-government seems invaluable.