The Supreme Court is set to hear oral arguments today in AFPF v. Rodriquez. It’s a case arising from the state of California’s requirement that non-profit organizations disclose their donors to state officials. The state finds itself opposed (as litigants or amici) by a staggeringly diverse array of non-profits — from libertarians to progressives, from pro-life groups to NARAL, from CAIR to the Human Rights Campaign. But as William Haun and Daniel Chen note today at Law & Liberty, the case raises questions that run well beyond the importance of anonymity to the very nature of what has come to be called the freedom of association.
Haun and Chen’s essay, which draws on an amicus brief in the case that they helped author for the Becket Fund for Religious Liberty, is profound and illuminating. And at its core is a question about the basic character of the rights protected by the Bill of Rights, and of the purpose of such protection — a question worth taking even further than they do.
The term “freedom of association” has often been part of how we think about some of the rights guaranteed by the First Amendment, but that term is not itself in the text of the amendment. That text reads:
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.
What we find here is a set of activities that are protected from the reach of the legislator. But what holds this set of activities together? What is the underlying, unifying good being protected?
The question is not as simple as it seems. You might say that this is about protecting civic engagement in a republican polity. But surely the first freedom — the freedom of religion, which is doubly protected — doesn’t simply fall into that category, even if the others do. You might think it’s about core individual rights. But the right to assemble and the freedom of the press aren’t exactly rights accruing to individuals, and I would argue that the freedom of religion is also incoherent as a purely individual right (though of course not everyone’s religion is as communal as my own).
The freedom of association has emerged as one way to think about some of the most important sorts of activities grouped together in the text. And over time, sometimes thinking of the First Amendment in tandem with the 14th, the courts have developed a further level of differentiation of those activities, which distinguishes a right to “intimate association” and a right to “expressive association.”
The right to intimate association protects familial and other very close communal settings. But the right to expressive association has come to encompass most of the circumstances in which it would make sense to describe First Amendment rights as involving a right of association. It is a particularly pertinent precedent for the case the Court is hearing today because the concept of expressive association first really emerged in the Court’s jurisprudence in the 1958 case of NAACP v. Patterson, in which the Court ruled against an Alabama law that required the NAACP to disclose its membership list.
And yet, as Haun and Chen note, the term “expressive association” suggests a very limited conception of what the rights grouped in the First Amendment really protect. To say that the freedom of association is in essence a freedom of expression is to imply that what citizens require in order to be free is a means of expression. This would be not only a radically incomplete understanding of freedom, but also an inadequate account of the logic of the Bill of Rights. The often underappreciated freedom to assemble begins to suggest why that is. As Haun and Chen put it:
This case provides the Supreme Court with an ideal opportunity to reground free association in the Assembly Clause and recognize that assemblies do not simply allow individuals to express themselves. Rather, they form citizens in the virtues that make and sustain self-government.
The freedoms protected by the First Amendment, in other words, guard the sorts of practices and institutions necessary to form the sorts of people our society requires. This is an insight that runs very deep, all the way to an anthropological assumption at the root of the conservative approach to political life. The assumption is that human beings start out crooked, imperfect, and unformed — prone to vice or sin — and so that we all need to be morally formed before we can be capable of freedom. That formation is what the core institutions of any society are for, and why they’re needed. That need is particularly acute in a liberal society like ours, because liberalism demands an extraordinary degree of responsibility and judgment, and yet liberal institutions by themselves do not necessarily produce people capable of those virtues in that degree. To produce such people requires the cooperation of liberal and pre-liberal institutions in society — political institutions, yes, but also (and more so) familial, communal, religious, educational, social, and cultural institutions.
The freedoms laid out in the First Amendment serve in part to protect our institutions and traditions of formation — to enable the development of the capacities we require to be responsible human beings and citizens. To describe what these institutions let us do as “expressive” is to overlook the anthropological assumption that underlies most of these institutions, or to reject it in favor of a shallower view. There is, after all, another kind of anthropology in which a liberal society could try to root itself. This view suggests that the human person is born ready to be free, and requires only liberation from the impositions of oppressive social strictures and some means for self-expression.
It is no exaggeration to suggest that the dispute between these two views of the nature of the human person is the question at issue in our culture wars, now and pretty much always. So it is no coincidence that in our time, when our culture wars are particularly intense and divisive, the institutions of moral and civic formation — family, religion, the school, the university, the press, the legislature, and more — find themselves mired in controversy and their basic character and sources of legitimacy demeaned and undermined.
The question of whether what the freedom of association protects is the capacity for formation or the capacity for expression is therefore a very serious question indeed. And it also forces us to consider the goals underlying the Bill of Rights, because our Constitution is itself unavoidably formative in part. The rights we recognize ourselves as possessing and the institutions built to guard them shape our understanding of who and what we are as individuals and as a people.
In fact, this formative potential proved important in persuading the father of the Constitution to come around to the value of a bill of rights in the first place. James Madison was originally suspicious of proposals to attach a bill of rights to the new Constitution, or at least dismissive of the need for doing so. But as Michael Zuckert argues in a wonderful recent essay, Madison came around to see the value of a bill of rights, and to champion its enactment when the new federal congress was ready to abandon the idea, because he came to understand its importance as more than just words on a page. Parchment barriers would never be enough to restrain an assertive majority. But the Bill of Rights is more than parchment. When he proposed the amendments that would become the Bill of Rights in the House, on June 8, 1789, Madison said:
It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.
The people shape the Constitution, but the Constitution also shapes the people. So the Bill of Rights is not only a function of a set of assumptions about what a free society involves, it is also a means of formation of the kinds of people a free society requires.
The rights often grouped under the rubric of the freedom of association are particularly worth understanding in this light, and that understanding should suggest to us one crucial underlying purpose of that freedom. We should think of these rights not only in terms of expressive association but also in terms of formative association. They protect our society’s capacity to form free people, who are after all the essential precondition for a free society. Even the freedom of speech, let alone those of religion, assembly, petition, and the press, needs to be understood in part as a freedom to engage in those activities that enable us to become the kind of people necessary for self-government — and indeed for human flourishing under the conditions of an ordered liberty.
Wherever the Court comes down on the particular issue before it today, this broader understanding of the purpose of the freedoms guarded by the First Amendment should inform our sense of what it takes to be genuinely free people, and why the liberal society requires more than liberalism for its preservation.