Liberty's Refuge: The Forgotten Freedom of Assembly.

• Author: Magarian, Gregory P.
• Position: Book review

The opportunity to introduce this exchange about Professor John Inazu's Liberty's Refuge: The Forgotten Freedom of Assembly (1) confers a daunting privilege. Giving a decent account of someone else's argument always makes for rough going, and the task becomes especially difficult when the argument features as much detail and nuance as Inazu has packed into Liberty's Refuge. This brief discussion of a book I greatly admire, by an author I am fortunate to know as a colleague and a friend, cannot hope to capture all of the book's important and interesting contributions. I will simply describe three of the book's primary facets. Liberty's Refuge is, first, a work of intellectual history: Inazu seeks to recover from history's tall grass a legally respected Anglo-American tradition of assembly. The book is also a work of constitutional interpretation and legal analysis: Inazu aims to revitalize the right of assembly for our time, critiquing the legal decisions that he sees as having buried or distorted assembly and charting a path toward renewed constitutional protection for assembly. Finally, the book is a work of normative political and legal theory: Inazu's legal analysis reflects his powerful normative commitment to the autonomy of groups--assemblies of all manner, size, and repute--that counter the state's power and allow individuals to define themselves through engagement with others. That all sounds rosy, and in many ways, it is. But Inazu's argument leads him into challenging and highly fraught terrain.

As intellectual history, Liberty's Refuge traces the origins, rise, and decline of the right of assembly. Inazu offers a rich account of the crucial role assembly played in forming and strengthening our society from the founding of the republic through the 1940s. He explains how the abolitionist movement, the movement for women's suffrage, and the progressive and labor movements of the early 20th century drew inspiration and strength from the right of assembly. (2) Legal protection for assembly allowed these dissident groups to pool their members' strength in order to challenge established arrangements of social and political power. The law took a wrong turn, in Inazu's view, during what he calls the national security era of the 1950s and the Civil Rights Era that followed. National security concerns associated with the Cold War led the government to suppress assemblies by communists and left-wingers. (3) Then the Civil Rights Movement, in Inazu's portrayal, gradually moved from an emphasis on including African Americans in society to an emphasis on barring white-controlled groups from excluding them. (4) These two developments allowed a new legal concept, the freedom of association, to depose the right of assembly.

Inazu's critique of the freedom of association animates Liberty's Refuge as a work of constitutional interpretation and legal analysis. He emphasizes that the text of the First Amendment refers to assembly, not association, and he argues that association makes a less robust and less desirable basis for constitutional protection than assembly. (5) In particular, Inazu criticizes freedom of association doctrine for focusing on two narrow ideas: expressive association and intimate association. (6) The Supreme Court, beginning in the late 1950s, decided that groups mattered, for purposes of their constitutional autonomy, if they...