Freedom of Association/Fundamentally accepted
When was it generally accepted as a fundamental, legally-protectable right?
The Freedom of Association only became formally recognized in the US in 1958 with the landmark NAACP v Alabama SCOTUS decision (“NAACP v. ALABAMA, 377 U.S. 288” 1964). Just after the Brown v Board of Education ruling the NAACP became incredibly active in Alabama. When the state tried to demand a list of the organization's members, the NAACP refused. Freedom of Association can be found in the majority opinion where Justice John Marshall Harlan II wrote “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” (“NAACP v. ALABAMA, 377 U.S. 288” 1964). Since the NAACP was allowed to organize their political group as an association and were afforded the privacy and rights they argued in the case. Prior to this, this right can be found in several U.S. cases leading up to the 1958 opinion. The Supreme Court did not always recognize Freedom of Association however. In 1886, a case centered on the forming of state militias, the Court declared that the government had the ability to regulate and prohibit associations “have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies.” (Cornell Legal Information Institute). The right to protest is clearly laid out here, while the Freedom of Association is denied. Later on, in a 1945 case, the Court applied the freedom of assembly stating, “[i]t was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” This allowed unions to discuss benefits and consequences of organizing (“Thomas v. Collins, 323 U.S. 516 (1945)”). Throughout the 1950s, the Court started to refer to the freedom of association as a separate but related freedom, close to speech and assembly, found in the First Amendment. By 1958, the Court deemed it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of" civil liberties like the freedom of speech. (Cornell Legal Information Institute). Internationally, the earliest autonomous associations were founded by religion. The Roman Catholic Church was the most important institution in medieval Western Europe. It kept its own organization and self-government, even in the several states where it served as the recognized religion (“Freedom of Association: History”). They encouraged trade associations, guilds for artisans, and other associations, frequently with the consent of the nation's ruler, who was typically a monarch (“Freedom of Association: History”). Outside of the US, one of the first instances of the debate regarding Freedom of Association in terms of organized labor was in Great Britain. At the end of the 18th century, the Comination Acts suppressed attempts to organize unions (“Freedom of Association: History” n.d.). This caused radical reformers to protest, driving workers to violence. Eventually, the government backed the repeal of the Acts in 1824. This repeal served as Britain’s first major increase in the ability to organize and unionize. Despite some infringements on labor rights in the 1980s and 1990s, the Trade Union Congress is still a strong force in the United Kingdom’s politics and economy (“Freedom of Association: History”). This was an early implication through labor rights that Freedom of Association existed. In order to address bad working conditions and social unrest, the ILO (International Labor Organization) devised a tripartite organization that included representatives from industry, labor, and government (“Freedom of Association: History”). The International Labor Organization (ILO) approved Convention No. 87 on freedom of association in 1948, and Convention No. 98 on the right to collectively bargain in 1949. As of 2013, 152 countries had ratified Convention No. 87, and 163 had ratified Convention No. 98, demonstrating how highly accepted these treaties are around the world (“Freedom of Association: History”). There are eight fundamental ILO conventions, some of which forbid child labor, forced labor, and employment discrimination. Only 14 of the 189 international standards treaties have been ratified by the US Senate, and only two of the eight core agreements (on forced labor in 1991 and child labor in 1999) have been ratified (“Freedom of Association: History”). On the other hand, nations in the former Soviet Union approved ILO treaties without ever putting them into use. Communist nations argued that since the Communist Party and its affiliated labor organizations represented workers' interests, there was no need for free trade unions, which are highly specific to certain trades (“Overview of Freedom of Association”). Thus, Soviet trade unions were the antithesis of free association and an "anti-trade union" paradigm. The official unions didn't shield workers from exploitation; instead, they made them labor longer and harder to satisfy government demands (Constitution Annotated). In democratic nations, private companies occasionally adopted a similar strategy known as "company unionism," but the Soviet Union's methods were systematic in nature and a crucial component of the totalitarian regime. The Soviet Union imposed its model on its Eastern European satellite governments and exported it to other communist nations (Constitution Annotated). The largest country still using a Communist Party-controlled official union structure is the People's Republic of China (Constitution Annotated). One of the ILO's greatest historical contributions was the inspiration and assistance it provided to Poland's Solidarity movement, which saw millions of workers rise up starting in 1980 and demand the implementation of Conventions 87 and 98 as well as the establishment of the right to form free unions (International Labor Organization 1982). As a result of the movement's success—10 million workers joined within a month of Solidarity's founding—a free trade union was officially recognized for the first time in a Communist nation. The Polish Solidarity Revolution had a tremendous impact on the entire Soviet bloc (International Labor Organization 1982). Solidarity's success was a rejection of the previous regimes. After seven years of nonviolent protest, Polish workers mounted a nationwide strike that compelled the government to re-legalize Solidarity and concede to partially free elections in June 1989, which ultimately led to the overthrow of the government (International Labor Organization 1982). Soon after, the Soviet Union as a whole disintegrated, paving the way for the rise of several new republics. Small clandestine publications that explained to employees their rights under ILO treaties served as the foundation for the entire operation (International Labor Organization 1982).
References:
Constitution Annotated. “Overview of Freedom of Association.” Library of Congress. Accessed September 11, 2023. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
Cornell Legal Information Institute.“Overview of Freedom of Association.” LII / Legal Information Institute. Accessed September 11, 2023a. https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association.
“PRESSER v. STATE OF ILLINOIS.” LII / Legal Information Institute. Accessed September 11, 2023b. https://www.law.cornell.edu/supremecourt/text/116/252.
“Freedom of Association: History.” Democracy Web. Accessed September 11, 2023. https://democracyweb.org/freedom-of-association-history.
International Labor Organization. 1982. “Interim Report - Report No 217, June 1982.” June 1982. https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2900704.
“NAACP v. ALABAMA, 377 U.S. 288 (1964).” FindLaw. Accessed September 11, 2023. https://caselaw.findlaw.com/court/us-supreme-court/377/288.html.
“Overview of Freedom of Association.” Library of Congress. Accessed September 11, 2023. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
“Thomas v. Collins, 323 U.S. 516 (1945).” Justia Law. Accessed September 11, 2023. https://supreme.justia.com/cases/federal/us/323/516/.