Duke Law Journal

Rethinking a Reinvigorated Right To Assemble

Abstract

Revived after a decades-long slumber, the First Amendment’s Assembly Clause has garnered robust attention of late. Endeavoring to reinvigorate this forgotten clause, legal scholars have outlined a normative vision of the assembly right that would better safeguard the freedom of association. This Note argues that such an approach—no matter its merits or its deficiencies—overlooks the Clause’s central aim. The assembly right is in fact best understood as an assembly right, not as a right about associations. This Note advances that proposition by closely analyzing the text and the history of the Assembly Clause, a project that has not yet been systematically undertaken. The evidence unearthed from this inquiry demonstrates that the Assembly Clause seeks, as its first-order concern, to protect in-person, flesh–and–blood gatherings. Such protection is thus ultimately of great import in rethinking both the freedoms afforded and the constraints imposed on dissent within our constitutional framework.