One of the basic rights enshrined in our Constitution is the ability to peacefully assemble to address grievances against the government. These rights predate the Constitution and have evolved over time.
“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,” reads the First Amendment (italics added for emphasis).
In the National Constitution Center’s Interactive Constitution, scholars John Inazu and Burt Neuborne explain how the First Amendment’s concluding clause set the stage for what are now considered two separate rights.
“The ‘right of the people peaceably to assemble, and to petition the Government for a redress of grievances’ protects two distinct rights: assembly and petition. The Clause’s reference to a singular ‘right’ has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word ‘assemble’ is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights,” they note.
Origins of the Right to Assemble
Inazu and Neuborne say the idea of protecting the right to assemble goes back to the pre-Revolutionary era. “For example, debates in the House of Representatives during the adoption of the Bill of Rights linked ‘assembly’ to the arrest and trial of William Penn for participating in collective religious worship that had nothing to do with petitioning the government.”
The incident referenced was the trial of William Penn and William Mead in 1670 at the Old Bailey in London. Penn (pictured left in 1666) was arrested for preaching on the street outside of the locked Gracechurch Street Meeting House; Mead attended the service. A jury acquitted the two men of unlawful assembly and inciting a riot. In return, the jury was jailed for reaching its verdict, a decision that was overturned in a habeas corpus ruling.
In 1965, scholar Irving Brant recounted how the Penn and Mead incident influenced the founders in 1789 when the House of Representatives considered adding the Bill of Rights to the Constitution. Rep. Theodore Sedgick of Massachusetts sought to strike the word “assemble” from the proposed amendment. But Rep. John Page of Virginia referenced the Penn case, which the entire House was familiar with. Rep. Elbridge Gerry also offered strong support: “The people ought to be secure in the peaceable enjoyment of this privilege, and that can only be done by making a declaration to that effect in the Constitution,” he told the House. Sedgwick’s motion lost by a wide margin.
The debate over the right to assemble has resurfaced in times of social conflict. “The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms,” Inazu and Neuborne conclude.
The Courts Consider the Right to Assemble
The Supreme Court first considered questions related to the assembly clause in 1876 and reconsidered it in 1937. Edward S. Corwin’s The Constitution and What It Means Today (1973 edition) spells out how the rights to assemble and petition became distinct:
“Historically, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if [the First] Amendment read: ‘the right of the people peaceably to assemble’ in order to ‘petition the government.’ Today, however, the right of peaceable assembly is the language of the Court, ‘cognate to those of free speech and free press and is equally fundamental… . The holding of meetings for peaceable political action cannot be proscribed.”
In United States v. Cruikshank (1875), the Supreme Court considered a case that originated from the 1873 Colfax Massacre, in which three white men and a large number of Black men were killed after a disputed election in Louisiana. Cruikshank and two others were convicted of violating the victims’ constitutional rights, including the right to assemble. The Supreme Court held that the 14th Amendment did not incorporate the right to peacefully assemble to the states.
But Chief Justice Morrison Waite did note the existence of assembly rights on a federal level. “The very idea of a government republican in form implies that right, and an invasion of it presents a case within the sovereignty of the United States.”
Later in De Jonge v. Oregon (1937), a unanimous Court effectively overturned Cruikshank and struck down as unconstitutional an Oregon law that barred public meetings advocating for “any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”
In the opinion, Chief Justice Charles Evans Hughes held that the 14th Amendment’s Due Process Clause applied to basic First Amendment rights at the state level: “The rights of free speech and peaceable assembly are fundamental rights which are safeguarded against state interference by the due process clause of the Fourteenth Amendment,” Hughes wrote. However, he said the rights were not unlimited: “These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people, through their legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed.”
In later years, the right to assemble has been considered in the broader context of the right or freedom of association. In Roberts v. United States Jaycees (1984), a unanimous Supreme Court determined that United States Jaycees’ chapters in Minnesota that denied memberships to women could not claim a violation of their free assembly rights.
Justice William Brennan said that peaceable assembly was considered in the broader context of association. “The Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties,” Brennan concluded.
Scholars Inazu and Neuborne conclude that despite the “neglect of assembly as a freestanding right” in recent years, “the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called ‘the right to differ.’”
Justice Jackson wrote in West Virgina v. Barnette (1943), the decision that overturned a law that forced public school students to salute the flag, that the “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
Scott Bomboy is the editor in chief of the National Constitution Center.
