Wednesday, March 28, 2012
Vischer on Inazu on Assembly
I've posted a new paper, How Necessary is the Right of Assembly? Here's the abstract:
This paper continues the conversation initiated by John Inazu's new book, Liberty's Refuge: The Forgotten Freedom of Assembly, by locating Inazu's analysis within our legal system's broader struggle to reconcile liberty claims by groups with our commitment to the individual's rights-bearing primacy. I underscore the timeliness and relevance of his approach, then ask three questions: 1) Why does Inazu limit the freedom of assembly to non-commercial groups? 2) Is Inazu's argument more appropriately pitched to judicial or political actors? and 3) If the right of association were to be interpreted less narrowly by courts, could it carry the burden that Inazu seeks to lay on the right of assembly?
Feedback is welcome.
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/03/vischer-on-inazu-on-assembly.html
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Rob, really nice piece. I enjoyed it. I had two questions for you:
1. Do you think that Hosanna-Tabor is more capable of shaking up the Smith framework than you say in the piece? Another way to ask this is, might Hosanna-Tabor portend more in the way of institutional freedom than you suggest, given the uncertain scope of its reach? If it might, then perhaps that is another (a different) sort of avenue to reach the kinds of freedoms that both you and John are talking about.
2. You note that the line of cases from Meyer through Griswold, Eisenstadt, and beyond are "natural law" cases, and that whatever associational sorts of rights are involved there (bracketing the expressive association cases) are less stable today in light of their natural-law quality than might be a new line of textually grounded freedom of assembly cases. But Griswold did proceed on a textually grounded basis (or, more accurately, a series of textual grounds...BoR penumbras, 9th A., and DP Clause), and subsequent cases in this line have purported to be rooted in the DP Clause.
So I guess I have a couple of questions! First, do you think the specific textual grounding is itself *more* of an advantage today in developing a line of cases than it was during the era when substantive due process jurisprudence got its footing. That is, do you think that we are more sensitive today to the textual root of rights than we were in the early-mid 20th century. Second, is the comparative advantage of a right of assembly a textual advantage? The cases that you call natural law cases did purport to be about text too, though perhaps you do not think that this is what they were really about.
Thanks again for a great piece.
Marc