United States
United States
| Right | Section | Contents |
|---|---|---|
| Freedom of Association | History | 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. References: Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262.
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| Freedom of Expression | History | The 1st Amendment to the US Constitution was the earliest piece of federal legislation in the country’s history to protect freedom of speech. The original document became law in 1788, while the Bill of Rights, which included the First Amendment, was ratified in 1791. “The United States Constitution.” National Constitution Center. Accessed June 27, 2023. https://constitutioncenter.org/the-constitution/full-text |
| Freedom of Religion | History | Article 1 of the Bill of Rights in the Constitution establishes freedom of religion and its expression. Article 1 also prevent congress from declaring an official religion. United States Senate . “Constitution of the United States of America.” Last modified 2021. Accessed July 6, 2022. https://www.senate.gov/civics/resources/pdf/US_Constitution-Senate_Publication_103-21.pdf. |
| Freedom of the Press | History | Freedom of the press is protected under the First Amendment of the US Constitution: “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" (Constitution Annotated, "First Amendment"). |
| Privacy Rights | History | The United States Constitution does not explicitly grant the right to privacy. The closest one might find in the Constitution is the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” (The Bill of Rights). Instead, the right to privacy has been inferred by the Supreme Court. In Griswold v. Connecticut, the Court held that the right to privacy is inferred in the Bill of Rights. Justice Douglas wrote the majority opinion and argued that many of the amendments in the Bill of Rights, such as the Fifth Amendment’s protection against self-incrimination, infers the right to privacy from the state and thus a right that the Constitution protects (Griswold v. Connecticut, 381 U.S. 479). The Supreme Court would uphold the right to privacy in other cases as well. In Eisenstadt v. Baird, the Court extended the ability to purchase contraceptives to unmarried individuals and found that “the constitutionally protected right of privacy inheres in the individual, not the martial couple.” (Eisenstadt v. Baird, 405 U.S. 438). In Roe v. Wade, the court determined that the right to privacy, derived from the Fourteenth Amendment, encompasses a woman’s decision on whether to have an abortion (Roe v. Wade, 410 U.S. 113). However, this is no longer the case, as Roe v. Wade has since been overturned. In Lawrence v. Texas, the Court again derived the right to privacy from the Fourteenth Amendment and gave the right to privacy to persons of the same sex who choose to engage in sexual conduct. The Court held “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” (Lawrence v. Texas, 539 U.S. 558). The US has multiple acts for the protection of private data. The Privacy Act of 1974 regulates the data that is collected, used, and disseminated by federal agencies; the Gramm-Leach-Bliley Act requires financial institutions to protect their consumers data and explain how to the customer; the Health Insurance Portability and Accountability Act (HIPAA) gives data privacy and security for medical information (Murray 2023). Theres are a multitude of different acts that protect the privacy of communications, children, government records and more. In addition to these federal acts, many states are passing or have passed consumer data privacy laws, such as the California Consumer Privacy Act, which applies to how businesses collect personal information from consumers (Murray 2023). In all, privacy rights in the United States are based off the Courts and legislative acts.
References: Justia Law. “Eisenstadt v. Baird, 405 U.S. 438,” 1972. https://supreme.justia.com/cases/federal/us/405/438/. Justia Law. “Griswold v. Connecticut, 381 U.S. 479,” 1965. https://supreme.justia.com/cases/federal/us/381/479/. Justia Law. “Lawrence v. Texas, 539 U.S. 558,” 2003. https://supreme.justia.com/cases/federal/us/539/558/. Justia Law. “Roe v. Wade, 410 U.S. 113,” 1973. https://supreme.justia.com/cases/federal/us/410/113/. Murray, Conor. “U.S. Data Privacy Protection Laws: A Comprehensive Guide.” Forbes, 2023. https://www.forbes.com/sites/conormurray/2023/04/21/us-data-privacy-protection-laws-a-comprehensive-guide/. National Archives. “The Bill of Rights: A Transcription,” November 4, 2015. https://www.archives.gov/founding-docs/bill-of-rights-transcript. |
| Voting Rights and Suffrage | History | U.S. election laws first were seen in Article 1 of the Constitution, which gave states the responsibility to oversee federal elections. Since then, many Constitutional amendments and federal laws have been put in place to protect voting rights such as the Fifteenth, Nineteenth, and Twenty-sixth Amendment (USA Gov, "Voting and Elections"). |