Why Association?

Abstract Although the text of the United States Constitution does not protect a constitutional right of association, it was understood to do so (via the Assembly Clause of the First Amendment) as far back as the 1790s. In 1958 the US Supreme Court confirmed that the First Amendment protected a right of association. However, the Court subsequently limited that right to expressive associations, because it treated the association right as subordinate to free speech. This doctrinal move was inconsistent with the history and purposes of the right. The right of association in the US is historically linked to democratic self-governance; but associations advance democracy in a myriad of ways including, but not limited to, enhancing the ability of citizens to participate in public discourse. Recognizing this fact should lead to protecting an expansive right to associate. This understanding also supports two controversial aspects of the US associational right: the right to discriminate, and protection for subversive associations.