Today, April 26, the Supreme Court will hear argument from Americans for Prosperity v. Rodriquez.
The situation calls for two California non-profits demanding the country’s requirement that theyand every other non-profit enrolled in California–reveal their donors to produce prospective law enforcement more”powerful” and”efficient.” Over 40 amicus briefs lambasted this embrace of open-ended authorities surveillance–reflecting an ideological agreement so wide that NARAL Pro-Choice North Carolina and Wisconsin Right to Life united the exact same brief. On the outside, widespread consensus in favor of associational privacy is surely welcome. But this arrangement masks equally widespread, decades-long confusion on how and why the Constitution protects free institution.
As the brief recorded by our company the Becket Fund for Religious Liberty–clarifies that confusion is at the heart of the situation, and solving it requires regrounding the best of”expressive” institution at issue from the text, history, and heritage of the First Amendment’s Assembly Clause. This history affirms that, despite modern law’s recent emphasis on”expressive” institution, assemblies do not exist only, or even mostly, for expressive purposes. Rather, they exist mostly for formative ones. Shaping individuals in faith, customs, rituals, habits, and ways of life–no matter how politically”expressive” they’re –requires a strong space beyond the person and the state because of the freedom of meeting.
But the Supreme Court has yet to love the formative heart of institution, nor has it clearly rooted the right of institution in almost any constitutional provision. The effect was short shrift to the Constitution’s protection of civil society.
This situation provides the Supreme Court with an ideal opportunity to reground totally absolutely free institution from the Meeting Clause and recognize that assemblies do not just allow people to express themselves. Ratherthey form taxpayers at the virtues that make and sustain self-government.
As Michael McConnell explainedthe”precursor” to the First Amendment’s freedom of meeting was”the freedom to collect together for spiritual worship.” Indeed, the term”meeting,” notes John Inazuitself derives from the Greek word”ekklesia,” that is also the basis for”ecclesiastical” and has always encompassed a different comprehension of political association, rooted in faith, that governs the temporal concerns of politics. Understanding associational life as different from the state depends on the”standard” of a personal sphere–a standard, as Father John Courtney Murray put it in We Hold These Truths,”first found” in recognizing the freedom of religious institutions to regulate themselves independent of geographical influence.
The modern idea of personal, voluntary meeting began when, as Larry Sidentop discusses in Inventing the Individual, Christianity brought a”new notion of community” to being. Before Christianity, societal arrangement was defined around the state’s”brute force,” while Christianity’s development necessitated forming social arrangement around”the autonomy of the church and the ethical world.” Initially, the private meeting chased by Christians was about separate legal jurisdiction and much more about protection against”official hostility and even persecution.” For that reason,”the practices of the earliest Christians,” Sidentop says, included”[s]ecret encounters in private homes, burials from catacombs,” and”small or no self-advertisement.”
Nevertheless much as Christianity gained prominence and acceptance in the Roman Empire, it lasted developing the idea of a private sphere of associational jurisdiction –currently one with legal rights. When the Roman Emperor Constantine allowed private individuals to bequest land to the Catholic Church, Western law abiding”a corporate capability for local congregations.” This principle carried over to the Catholic Church’s development of canon law throughout the Middle Ages, as it sought to safeguard its self-governance from royal influence–a growth that was itself inspired by the evolution of monasticism into voluntary associations.
Nature abhors a vacuum, and so does the Nation. It proceeds to fulfill the social area once occupied by the religious institutions that formed taxpayers at the virtues needed for self-governance. It was this record that the Supreme Court alluded to at Wisconsin v. Yoder when it admonished Americans to”remember that at the Middle Ages significant values of the civilization of the Western World were maintained by the members of religious orders who isolated themselves from all possible consequences against great obstacles.” As Father Murray put it, a personal world free of state management did not–and couldn’t –claim legal recognition just as”an’thought’ or a’essence’ but a Thing, a visible institution that inhabited ground in this world at exactly the exact same time it asserted that an astonishing new freedom on a name not of the world.” Assessing that distinct sphere lies at the center of free meeting, and for purposes crucial to self-government.
“Nothing,” Alexis De Tocqueville stated in Democracy in America,”is much more deserving of our attention than the intellectual and moral associations of America.” Democracy’s focus on self-actualizing equality encourages citizens to”constantly consider themselves as standing alone, and they are likely to imagine that their whole destiny is in their hands” Without the formation of institutions, especially religious institutions, this trend allows person to”overlook his ancestors,… conceal  his descendants along with different  his contemporaries from him”
When the ambitions of individualism and equality are unmoored from formative institution, Tocqueville is clear about that which follows: despotism. As man becomes convinced that he owes nothing in his past, just wants to respect his neighbours on his provisions, and doesn’t have any obligation to exude traditions to future generations, so he’ll draw to”the solicitude of his own heart.” Nature abhors a vacuum, and so does the Nation. It proceeds to fulfill the social area once occupied by the religious institutions that formed taxpayers at the virtues needed for self-governance. As Robert Nisbet would detail above a century following Tocqueville at The Quest for Community, it is precisely such a erosion of”the field of institution” once characterized by”the family, the local community, and also the church” that, in turn, erodes an person’s”engendering” from the merits of”work, love, prayer, and dedication to freedom and order” As civil society disappears, so does man’s capacity for governing himself.
The Founders Protected Formative Assembly
The ratification debates within the Meeting Clause confirm that the founding generation appreciated the significance of associations. That was rebutted by the invocation of William Penn being infamously tried for unlawful assembly afterwards he and his fellow Quakers tried to fulfill secret. This trial was well known to the Founders.
As Professor Inazu recounts, Penn’s Quaker assembly had violated England’s 1664 Conventicle Act, which forbade”Nonconformists” to the Church of England by”attending a meeting, or gathering themselves together” Quakers, clearly, are not Anglicans, and a company of soldiers averted Penn and his team from entering their meetinghouse because of their criminal conventicle. Undeterred, Penn began delivering a sermon to Quakers assembled in the road. Penn was later brought to trial at a now-famous series of events that included a fee for contempt after he refused to remove his hat in court as a consequence of his belief that hats must just be removed before God, not men. Following Penn’s trial was the House of Representatives–with a substantial bulk –voted down Sedgwick’s removal attempt.
Freedom of meeting was likewise crucial in protecting the development of founding-era political parties and shielding 19th-century abolitionists and suffragists. As our brief particulars, the practices of this Sons of Liberty, widespread usage of anonymous political speech, and also the political responses to this anonymous meetings of those Democratic-Republican clubs all confirm a strong protection for anonymous meeting with expressive purposes. This history is indispensable to fully appreciate the Meeting Clause’s scope.
But while the invocation of Penn’s trial during ratification shows, shielding political term wasn’t the Meeting Clause’s chief historic purpose. President Jefferson, as an example, reassured Ursuline nuns from New Orleans that, despite the Louisiana Purchase,”the fundamentals of the constitution and government of the United States are sure guarantee… that your institution will be allowed to regulate itself based on it’s [sic] own voluntary rules” And for abolitionists, as Akhil Reed Amar clarified at The Bill of Rights,”the core right of meeting seems to [have been] the best of blacks to assemble peaceably to the Sabbath for its worship of [the] Creator” in accordance with their own religious customs. These examples confirm that the historic core of free meeting is maintaining social space for that which Inazu calls”a kind of politics different from the politics of this nation.”
“Expressive” Association Erodes Self-Government
Sad to say the freedom of meeting began losing its formative heart following the Civil War, when the Supreme Court articulated the Meeting Clause as protecting only the right to request. Following the First Amendment was employed against the nations, some Supreme Court cases (such as Thomas v. Collins and De Jonge v. Oregon) tried to restore the liberty’s wider extent. But following the Court chose NAACP v. Alabama in 1958, the practical effect was to supplant the Meeting Clause using a textually unmoored right to”expressive” institution.
Failing to guard the formative facets of associational life–that precede”expression”–fails to observe any constitutional value in taxpayers being shaped in certain virtues and ethical visions necessary for self-government. It might seem ironic to view NAACP v. Alabama–a situation where the Supreme Court publicly banned Alabama from forcing the NAACP to disclose its membership list during the Civil Rights era–as the origin of unstable constitutional protection for civil culture. But this case began the modern conditioning of free association on”expressive” values and accordingly had difficulty rooting the appropriate in any specific constitutional provision.
This perplexed analysis resulted in inconsistent, unclear protections for a range of civil society assemblies. For example, the Supreme Court has held that the Boy Scouts are sufficiently”expressive” to prevent authorities review of the membership criteria, however, the Jaycees are not. By narrowly focusing on”expression,” the Court has also indulged the very problem that might have doomed the Meeting Clause’s ratification–fixing it like free-speech”minutiae.” In Christian Legal Society v. Martinez, as an example, the Court ignored any formative freedom a campus religious group owned around certain faith. Rather, the Court”merged” the team’s free association claim to free-speech doctrine. In Americans for Prosperity, the Ninth Circuit below concluded that nothing”is distinguishable” involving the First Amendment’s application to expressive political associations and some other assembly–like the lower standard of review for disclosure conditions in political campaigns commanded.
But the issues are not simply doctrinal. Failing to guard the formative facets of associational life–that precede the”expression”–fails to observe any constitutional value in taxpayers being shaped in certain virtues and ethical visions needed for self-government. Rather, knowing even associational freedom in terms of self-expression indulges the cultural trend explained by Yuval Levin at A Time to Build: that institutions should be mere”platforms” for vain self-performance, instead of molds for character. As Tocqueville and Nisbet cautioned, folks cannot govern themselves whenever they are not formed beyond their needs.
“Cancel culture” manifests this threat in a serious way. Deploying the tools of modern technology, an individual’s right to self-expression motivates him to”offset” any meeting he finds distasteful. This makes it easier than ever for its isolated, passion-driven person to demand that authorities power be deployed against the offending meeting’s moral vision. The area for civil society is just not allowed to exist. These developments strengthen the requirement for regaining the formative freedom of meeting.
Recovering the Full Freedom of Meeting
Rather than continue allowing”expressive” institution to emanate in the penumbras of different constitutional terms, Americans for Prosperity presents the Court with an opportunity to reground the freedom of association as part of their Meeting Clause.
The Court’s remedy of a different sphere of jurisdiction for spiritual institutions makes for an instructive guide–both for both doctrinal and cultural factors. Culturally, as Tocqueville clarified the formative qualities of spiritual institutions make them”strong on the very point where democratic nations are weak.” That is, they temper guy’s”inordinate love of material gratification” and also self-aggrandizement through responsibilities that require him to look beyond himself and beyond politics for his true worth, individuality, and salvation. Doctrinally, the Supreme Court has always recognized that the personal world of spiritual institutions is intended to beas Justices Alito and Kagan said–a”protect” against certain laws imposing an contrary morality; a distance where, to quote Yoder, the”hydraulic insistence on conformity to majoritarian criteria” could be resisted through a distinct moral witness. To be certain, religious institutions have a constitutionally and distinct role in the united states, so not every component of the constitutional solicitude directly maps to every other societal institution. But they are, as McConnell says,”the clearest and most firmly established examples of’civil society’ institutions.” The Court’s principles toward them can thus help guide the healing of a formative freedom of meeting.
As our brief explains, just interests of the maximum order (like public safety) chased via the least restrictive means can correctly limit the freedom of meeting. It has been well built in protecting religious institutions, with many analogies to the meeting context. And implementing this to the Meeting Clause fits with recognizing the freedom as one not just surrounding expression, but chiefly letting the formation of ethical visions that may be counter to the zeitgeist–dreams that, under a lower standard of review, majorities could squelch out of existence, or into entry. As our brief explains, California’s forced donor disclosure demand comes close to fulfilling this high standard.
In concluding his discussion on civil society’s connection to political freedom, Tocqueville rightly identified the stakes if constraints on free meeting”were not restricted within narrow limits” Restricting the freedom for exigencies could be critical. “[B]ut nevertheless it is well that the nation should know at exactly what cost these blessings are bought.” Mandatory donor disclosure allows the authorities to monitor–and competitions to detect –assemblies forming congregants in ways that stand athwart the latest fashions. Approving that tool since it’s a suitable regulation of how one expresses himself politically continues the short-sighted view that liberty’s worth is located either in the self or in the state. Reviving the formative freedom guaranteed by the Meeting Clause would protect the distance where life is fully lived–beyond the person and the state.