In Print: Volume 89: Number 6
Liberty’s Refuge, or the Refuge of Scoundrels?: The Limits of the Right of Assembly
By Ashutosh Bhagwat
89 Wash. U. L. Rev. 1381 (2012)
(PDF)
Professor John Inazu’s recently published book, Liberty’s Refuge: The Forgotten Freedom of Assembly, is a truly impressive achievement. It is a good book for all of the usual reasons: it is well-researched, well-written, and persuasive. But Liberty’s Refuge is more than just well done—it is an important book in the contribution it makes to our understanding of the First Amendment. In this book, Professor Inazu has discovered and reintroduced to the rest of us the lost history of a very important constitutional right—the right to peaceable assembly protected by the First Amendment. He successfully makes the case for the central role that this right played in historical understandings of the First Amendment, and then demonstrates how, in the past half century, this right declined and eventually was almost forgotten by both the Supreme Court and our society as a whole. That accomplishment is in itself a significant addition to our understanding of constitutional history, and one he should be proud of.
Liberty’s Refuge, however, is not just a historical work; it is also a theoretical and normative one. Professor Inazu’s theoretical focus is on how the decline of the assembly right, and its replacement by the modern, truncated right of expressive association, can be tied to other historical and philosophical developments of the 1950s and 1960s, notably the challenges posed by the McCarthy and Civil Rights eras, and the dominance of political philosophy by first the pluralism of Robert Dahl and then the liberalism of John Rawls. In particular, he notes how both of these philosophies, while purporting to provide an explanation and justification for liberal democracy, contained within them strong normalizing assumptions that tended to discourage radical difference and dissent. These tendencies influenced the courts in ways that lead them to transform a broad (and textual) right of assembly into a narrower (and nontextual) right of expressive association (as well as a narrow, for other reasons, right of intimate association). This explanation enriches our knowledge of how this doctrinal transformation occurred and succeeds unusually well in relating doctrinal evolution to the greater world, an accomplishment notably rare in legal scholarship.
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