Mirror of Justice

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Wednesday, March 28, 2012

Vischer on Inazu on Assembly

I've posted a new paper, How Necessary is the Right of Assembly?  Here's the abstract:

This paper continues the conversation initiated by John Inazu's new book, Liberty's Refuge: The Forgotten Freedom of Assembly, by locating Inazu's analysis within our legal system's broader struggle to reconcile liberty claims by groups with our commitment to the individual's rights-bearing primacy. I underscore the timeliness and relevance of his approach, then ask three questions: 1) Why does Inazu limit the freedom of assembly to non-commercial groups? 2) Is Inazu's argument more appropriately pitched to judicial or political actors? and 3) If the right of association were to be interpreted less narrowly by courts, could it carry the burden that Inazu seeks to lay on the right of assembly?

Feedback is welcome.

http://mirrorofjustice.blogs.com/mirrorofjustice/2012/03/vischer-on-inazu-on-assembly.html

Vischer, Rob | Permalink

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Rob, really nice piece. I enjoyed it. I had two questions for you:

1. Do you think that Hosanna-Tabor is more capable of shaking up the Smith framework than you say in the piece? Another way to ask this is, might Hosanna-Tabor portend more in the way of institutional freedom than you suggest, given the uncertain scope of its reach? If it might, then perhaps that is another (a different) sort of avenue to reach the kinds of freedoms that both you and John are talking about.

2. You note that the line of cases from Meyer through Griswold, Eisenstadt, and beyond are "natural law" cases, and that whatever associational sorts of rights are involved there (bracketing the expressive association cases) are less stable today in light of their natural-law quality than might be a new line of textually grounded freedom of assembly cases. But Griswold did proceed on a textually grounded basis (or, more accurately, a series of textual grounds...BoR penumbras, 9th A., and DP Clause), and subsequent cases in this line have purported to be rooted in the DP Clause.

So I guess I have a couple of questions! First, do you think the specific textual grounding is itself *more* of an advantage today in developing a line of cases than it was during the era when substantive due process jurisprudence got its footing. That is, do you think that we are more sensitive today to the textual root of rights than we were in the early-mid 20th century. Second, is the comparative advantage of a right of assembly a textual advantage? The cases that you call natural law cases did purport to be about text too, though perhaps you do not think that this is what they were really about.

Thanks again for a great piece.

Marc

Posted by: Marc DeGirolami | Mar 28, 2012 1:04:20 PM

Thanks for the great questions, Marc. As you know, I'm not a con law scholar, but just a dabbler when it suits my purposes. I pursued (briefly) this line of inquiry in the paper because I think it's central to a treatment of John Inazu's work -- i.e., why can't the right of association do what John wants the right of assembly to do? One answer, I think, is that the classic cases such as Meyer, Pierce, and Griswold are anchored in a conception of certain relationships being rooted in a natural order that lies beyond the law's reach. Even though there may be constitutional text in play in those cases, I don't think that it's doing any heavy lifting. The freedoms that belong to the parent-child relationship and the married couple -- regardless of whether they're acknowledged in the positive law -- seem (to me) to be animating those decisions. That's what I think we've lost, for better or for worse. We're more dependent on the positive law to define the categories of relationships that matter, and so a constitutional right may have less room to operate outside explicit positive law prescriptions. That's where the textual anchor of assembly can come in, and I do think it's an advantage, though I don't know how much of one, and I can't comment on the broader state of textual vs. non-textual rights now or in the mid-20th century.

Posted by: rob vischer | Mar 28, 2012 3:39:01 PM

I'm sorry I haven't read the paper yet, Rob, but it's a fascinating post and I look forward to reading the whole thing. Two comments, if I may: 1) I think there is some possibility that H-T upsets Smith more than the Court says. Or, put differently, it ought to do so, whether the Court ultimately lets that happen or not. The distinction it draws with Smith in H-T is, to put it charitably, very poorly spelled out, although I think there is something to it. But I think the more the Court tries to make sense of the distinction it drew there between wholly external acts and purely internal matters of church governance, the more it will run up against and call into question Smith itself (or H-T, in fairness to its critics). 2) Your comment above is very interesting. I wonder whether it's so much that we're more dependent on positive law to define the categories of fundamental relationships, or whether it's just that the degree of connectedness between those relationships and the legal rules that affect and perhaps even help define them is more apparent these days because it's in more of a state of flux. Marriage and parenting relationships have always been affected by positive law, but on a very different time-scale.

Posted by: Paul Horwitz | Mar 29, 2012 7:21:16 AM

Good points, Paul -- thanks. I'll leave it to you, Marc, and the other religion clause experts to work out the H-T/Smith dynamics. Looking forward to the conversation.

Posted by: rob vischer | Mar 29, 2012 10:17:52 PM