Wednesday, October 12, 2005

In kind of a throwaway part of today's class, our First Amendment professor today made and then let pass the argument that "freedom of association" (a favorite of conservatives who want to, say, keep gay scoutmasters out of the Boy Scouts) is just as much of a made-up, "judicial activist" right as the right to privacy (a non-favorite of many of the same conservatives). This seemed strange at first--the right to assemble is right there in the First Amendment, right? It turns out that the argument is a great primer in statutory construction, and I'm actually persuaded.

Here's the text of the First Amendment:

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.
Yes, there it is, "peaceably to assemble," right there in the text. But as Lee Corso would say, not so fast my friend...

The key to understanding how many distinct rights are enumerated here is to follow the punctuation and the conjunctions. You may have been taught that there are five rights in the First Amendment, freedom of (1) speech, (2) assembly, (3) religion, (4) press, and (5) petition. It turns out that there are 3, and they're separated by semicolons and "or"s, following the lead-in of "Congress shall make no law:"
  1. respecting...religion, or prohibiting the free exercise thereof;
  2. abridging freedom of speech, or of the press;
  3. or the right...peaceably to assemble, and to petition the government
Note that 2 and 3 both fall under "abridging," and also that each distinct right is separated by "or". You can see "speech" and "press" as one right or two here, and I think either makes sense. But after "press" we get a semicolon that leads into the last clause. While all the previous rights are listed disjunctively (Congress can't do this or that), the last bit is written conjunctively (to assemble, AND to petition). In construing statutes and other legal writing, we generally presume that when there are changes in terms or structure, those changes are meaningful; this is often put this way: The drafters knew how to say it differently if they wanted to.

Here, if the right to assemble was a distinct right from the right to petition, the construction of the rest of the amendment suggests it would be separated by an "or" and a semicolon, or at least by an "or" and a comma. The "and" suggests this is one right, not two: the right to assemble insofar as it is related to petitioning the government for redress of grievances. Note that the rights of speech, religion, and press do not have this limitation, as indicated by the semicolons and "or"s--you do not have to be petitioning the government to exercise your free speech rights, but you do in order to exercise your freedom of assembly.

So under this view, there's no right to assembly in and of itself. To find such a right requires you to assume it's a Ninth Amendment reserved right, or that there are penumbras of rights that can be teased out from other rights, or that (gasp!) this right was created via judicial activism. All three are supposedly anathema to the federalist types who love nothing more than to ridicule Griswold v. CT, Roe v. Wade, etc. for exactly these judicial sins.

What can we take from all of this? I suggest three things:
  1. And, but, and or--they'll get you pretty far.
  2. Joe is capable of amazing levels of tedious pedantry about trivial details that would occupy the normal person for only an instant, if at all.
  3. Nope, that's pretty much it.

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