February 29, 2012 – Essay #8 – Amendment I: Congress Shall Make No Laws….Abridging the Right of the People to Peacefully Assemble – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College
The Right to Effective Citizenship
Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.
Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution. These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others. Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.
But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?
The right to assemble in public did not prevail in most places, in most times. Public assemblies endanger rulers. They can endanger the peace. During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion? In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”
But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent. In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so. After all, he argued, do men not meet peaceably every day in local markets? Do they not circulate freely on the streets of cities? Why then do rulers fear religious assemblies? “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous…. Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”
Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.” Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.
Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution. The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison. In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done. “If people converse together, they must assemble together,” one Member quite sensibly remarked. But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.” That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others I will begin to see things I had overlooked. This is the advantage of deliberation in common over mulling things over by oneself. Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.” We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved. The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens. Therefore, the same Member concluded, “the people have the right to consult for the common good.”
When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government. Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England. But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining. Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people. Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?
Not so in America, Tocqueville saw. There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments. Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary. To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’ In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do. Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less. Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.