Groups and the Constitution

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alexis de tocqueville famously observed, "Americans of all ages, all stations in life, and all types of dispositions are forever forming associations." Yet constitutional theory hardly has begun to connect to reality in which individual identities are anchored within myriad associations, both voluntary and involuntary.

Judges, lawyers, and scholars have constructed quite different standards regarding the relationship between groups and the Constitution at varying moments in American history. No unified general theory of freedom of association seems possible today. Yet there remains a need for careful, nuanced consideration of the constitutional position of groups in the United States. In some instances, an association is thought to merit greater protection and more expansive rights than would be afforded any single individual; in other situations, an association may merit substantially less protection and have rights more constricted than would a single individual. Often, associations are said to merit precisely the same rights any single individual would enjoy.

Prevailing opinion maintains that the Constitution protects no explicit independent freedom of association. This theory—largely derived from a binary approach within the central paradigm of individual and the state—considers groups of people as sums divisible into their parts. Even leading first amendment scholars such as Thomas I. Emerson, for example, argued that it "is impossible to construct a meaningful constitutional limitation on government power based upon a generalized notion of the right to form or join an association." In those respects in which associations are unique, Emerson would allow additional governmental regulation.

In some cases, however, individuals are persecuted precisely because of their membership in groups. Some groups, moreover, have been punished for their very existence. Guilt by association periodically has dominated our legal landscape. In tense times, judges tend to acquiesce in restricting the rights of individuals because of their memberships—volitional or nonvolitional—in particular associations. In New York ex rel. Bryant v. Zimmerman (1926), for example, the Supreme Court upheld the conviction of a Ku Klux Klan officer based solely on the group's failure to disclose its membership list. As late as 1961, the Court reiterated a theory of restricted associational rights regarding membership in the Communist Party. Perhaps the most striking "guilt by association" decision, however, was korematsu v. united states (1944), which upheld the internment of Japanese Americans during world war ii. The Court deferred to revocation of constitutional rights because race positioned thousands of people as members of an identifiable, feared group.

In contrast to Korematsu, the Court occasionally has extended group rights that are decidedly more protective than the rights afforded to any individual. In a number of situations, members of groups are legally protected though a lone individual engaged in the same activity might not be: for example, members of groups who parade, report the news, engage in certain labor activities and boycotts, and gain protection from deportation because of persecution in their home countries. In naacp v. alabama (1958), Justice john marshall harlan'sopinion for the court described a First Amendment right of association and protected the NAACP from one of the attempts by Southern states to obtain membership lists in order to punish activists in the civil rights movement. In NAACP v. Claiborne Hardware Co. (1982), Justice john paul stevens'smajority opinion echoed Harlan's freedom of association approach. Claiborne Hardware insulated a local NAACP chapter from a huge fine imposed by a state court for organizing and enforcing a long boycott of white merchants in Port Arthur, Mississippi.

The Court also has recognized some First Amendment rights of business associations in the form of corporations. Consolidated Edison Company v. Public Service Commission (1980), for example, categorized the huge power company as a private party protected in commercial speech communications via enclosures in its utility bills. Newspapers seek profits, Justice lewis f. powell, jr. , reasoned for the majority, so other profit-seeking corporations also should be entitled to express themselves.

Nonetheless, recent Court decisions tend to limit special associational rights either to the freedom of intimate association or to "the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities," as described in Board of Directors of Rotary Club International v. Rotary Club of Duarte (1987). Rights surrounding intimate association are derived primarily from right of privacy and substantive due process sources. The other main freedom of association source is anchored in the First Amendment. By deriving two different associational rights from other constitutional rights, the Court often seems to render freedom of association nearly otiose.

A few notable exceptions to this limiting approach have breathed new life into associational rights, albeit in a scattered and inconsistent way. In Roberts v. United States Jaycees (1984), Federal Election Commission v. Massachusetts Citizens For Life (1987), and austin v. michigan chamber of commerce (1990), for example, the Court suggested that the group quality of the claimed right made a constitutional difference in striking the balance under the First Amendment. The communicative purposes of the association as well as the type of communication involved are key factors. Yet in bob jones university v. united states (1983), Regan v. Taxation With Representation of Washington, Inc. (1983), and cornelius v. naacp legal defense and educational fund, inc. (1985), the Court deferred to the discretion of government agencies in deciding whether to recognize associations' First Amendment claims.

Some argue that, primarily through the First and the fourteenth amendments the Constitution entails direct protection for those concerned enough to assemble together. This right, whether or not linked explicitly to other constitutional protections, might provide guarantees for groups who would speak, write, petition, or pray against orthodoxy. Such an associational right would not always trump competing claims, of course—no constitutional right ever does—but it would establish a rebuttable presumption to be overcome only by a conflicting and compelling state interest. Another claim, akin to that made in the famous Footnote 4 of united states v. carolene products (1938), asserts that for marginalized or endangered groups—" discrete and insular minorities "—there ought to be more careful constitutional scrutiny of actions that intrude upon or discriminate against such groups as groups. Yet the Court recently has insisted, albeit inconsistently, that even equal protection claims are limited to individuals.

As a matter of contemporary constitutional doctrine groups generally are treated—with notable exceptions such as heterosexual couples, explicitly political associations, and the NAACP—as if they are simply conglomerations of individuals that accurately reflect the sums of their individual parts. Certainly no unified general theory of freedom of association seems possible today, if it ever could have been.

Aviam Soifer

(see also: Asian Americans and the Constitution; Japanese American Cases.)


Emerson, Thomas I. 1964 Freedom of Association and Freedom of Expression. Yale Law Journal 74:1–35.

Garet, Ronald A. 1983 Communality and Existence: The Rights of Groups. Southern California Law Review 56:1001–1075.

Soifer, Aviam 1995 Law and the Company We Keep. Cambridge, Mass.: Harvard University Press.