View source for Source/Freedom of Association

==What is the oldest written source that mentions this right?==
John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). 

“Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.

In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.

Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues in On Liberty that“from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (16).

===What is the oldest written source in this country that mentions this right?===
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====France====
Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. 

“Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”

Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 237).

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====Mexico====
From Section 1 Article 9  the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”

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Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”

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====United Kingdom====
The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). 

In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).

I found a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.”
Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man”(257). 

Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). 

“Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.
Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”

====United States====
Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.

Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right ("Freedom of Assembly and Petition"). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). 

As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: 

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). 

Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. 

In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” 

Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” 

Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”
Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”

Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.

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===Is there another noteworthy written source from the past that mentions this right?===
===Is the identification of this right associated with a particular era in history, political regime, or political leader?===
===What specific events or ideas contributed to its identification as a fundamental right?===
===When was it generally accepted as a fundamental, legally-protectable right?===
===What historical forces or events, if any, contributed to a widespread belief in its importance? ===

==Legal Codification==
===Is this right protected in the Constitutions of most countries today?===
===Is it contained in the US Constitution?===
===Has it been interpreted as being implicit in the US Constitution?===
===Are there any exceptions in American law to this right?===
===Is this right enshrined in international and regional human rights treaties?===
==Philosophical Origins==
===What have religious and philosophical traditions contributed to our understanding of this right?===
====Buddhism====
====Platonism====
====Aristotelian thought====
====Ancient Chinese Philosophy====
====Stoicism====
====Early Indian Philosophy====
====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====
====Roman Legal and Political Thought====
====Early Christianity====
====Thomism and medieval Christianity====
====Medieval Islamic Thought====
====Medieval Judaism====
====Early Modern Rationalism====
====Absolute Idealism====
====Reformation Christianity====
====Hobbesian Thought====
====Lockean Thought/English Empiricism====
====Physiocrats====
====Scottish Enlightenment====
====Modern Capitalism====
====Rousseau's Thought====
====Kantianism====
====German Idealism====
====Benthamite Utilitarianism==== 
====Millian Utilitarianism====
====Current Utilitarianism====
====Transcendentalism====
====Marxism====
====Early Sociology====
====Pragmatism====
====Weberian Thought====
====Process Philosophy====
====Social Darwinism====
====British Idealism (19th cen.)====
====Continental Philosophy/Frankfurt School====
====Behaviorism====
====Feminist Thought==== 
====Postmodernism====
===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== 
===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===
==Culture and Politics==
===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===
===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===
===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===
===Does public polling reveal insights about the right as experienced in different countries?===
==Conflicts with other Rights==
===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===
===Are there other specific rights that are critical to the exercise of this right?  Can you identify specific examples of this?===
===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===
===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===
===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===
==Limitations / Restrictions==
===What are the typical exceptions or limitations placed on this right?===
===Under American jurisprudence, what permissible exceptions exist?===
===Under international human rights laws, what permissible exceptions (often called derogations) exist?===
===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===
===Should this right be limited when limiting it would jeopardize democratic norms?===
===Is this right often perceived as threatening to government authorities?===
===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===
===Is this right at times curtailed by private actors?===
===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===
==Utilitarian / Fairness Assessments==
===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===
====Short-term economic cost in general====
====Long-term economic cost in general====
====Cost to those least able to economically absorb the cost====
====Cost to perceived democratic legitimacy====
====Cost to consistency or coherence of the law as a whole====
====Cost to the legitimacy or effectiveness of other rights====
====Cost to considerations of social equality====
====Cost to other non-material goods not so far specified====
===What are the financial consequences, if any, of making this right a legally protectable right?===
===Are there any groups that are uniquely disadvantaged by the exercise of this right?===
===Are there any groups that uniquely benefit from the exercise of this right?===
===Are there instances when this fundamental right can lead to unfairness or inequities?=== 
===Are there objective ways to measure the utilitarian nature of this right?===
===If so, where can one draw the line: when does this right stop being useful or economically viable?===
==Looking Ahead==
===How can we expect this right to change and evolve in the years ahead?===
===How is the future likely to shape the exercise of this right?===
===Will the exercise or protection of this right be affected by technological changes?===
===Under what conditions would this right become irrelevant?===
===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===
==Policy Recommendations==
===Can the practice or exercise of this right be shaped through executive action?===
===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===
===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===
===Is this right best addressed at the national level? The sub-national level? The international level?===
===To what extent is this right shaped primarily by judicial decisions?===
===If this right is best addressed through the amendment process, how should it proceed?===
===If this right were unlimited, what might be the consequences (positive and negative)?===
===If this right were eliminated, what might be the consequences (positive and negative)?===