Freedom's associations

This Article offers a new approach to the protection of associations under the Constitution. Although the modern Supreme Court's doctrine of freedom of association is based on expression, in the early Republic associations were understood not in terms of free speech, but in terms of freedom of assembly and popular sovereignty. On this account, associations are constitutionally significant because they allow for self-government. Popular sovereignty also offers a more useful basis for understanding freedom of association today. This Article therefore provides tools for assessing the proper scope of constitutional protections for associations once they are understood in terms of popular sovereignty, and for evaluating governmental regulations of associational life. This Article shows that associations merit constitutional protection if they directly engage in political activities, or if they equip their members with politically relevant skills. This Article sorts out different kinds of associations and evaluates the proper scope of their associational freedom. With respect to the contentious issue of whether associations should be exempt from anti-discrimination laws, the popular sovereignty approach suggests that only small, member-intensive associations should be free to select their members without governmental interference. While mass-membership organizations like the Boy Scouts or even political parties may merit some constitutional protection, their significance to popular sovereignty does not depend on their exemption from laws prohibiting discrimination.