Panel Focues on Inazu’s Book that Reclaims Forgotten Constitutional Right

Two panels of legal scholars from across the country convened at the law school recently to discuss Professor John Inazu's new book, Liberty’s Refuge: The Forgotten Freedom of Assembly. While they challenged Inazu on some points, all agreed that the book’s argument was complex, subtle, and well made.

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Greg Magarian, professor of law, started the discussion by pointing out that Liberty’s Refuge succeeds at being three things: an intellectual history, a work of Constitutional interpretation, and a theory of the right of assembly.

“It’s wonderful to have this book to engage with as we explore what John Inazu has convinced me is an important but forgotten Constitutional right—the right to freedom of assembly,” Magarian said.

“Because of his clarity and candor, when I disagree with John I know why,” Magarian continued.

Adrienne Davis, vice provost and the William M. Van Cleve Professor of Law, moderated the first panel, which included Ian MacMullen, assistant professor, Department of Political Science, Arts & Sciences, Washington University; Bernadette Meyler, professor of law, Cornell Law School; and Neil Richards, professor of law, Washington University School of Law.

In his critique, MacMullen focused on aspects of the conflict between assembly rights and nondiscrimination, expressing concern that Inazu’s analysis neglects substantive moral arguments for prioritizing nondiscrimination principles over group autonomy.

Similarly, Meyler wondered if a revival of the right of assembly would include the rights of groups to exclude certain members. Richards, with a nod to novelist Charles Dickens, explored “assemblies past, assemblies present, and assemblies yet to come.”

“John’s book is sophisticated, intellectually honest, and surprisingly readable for a serious book about complex ideas,” Richards said. “It is also deeply, deeply erudite.”

Deborah Dinner, associate professor of law, moderated the second panel, which examined theoretical and Constitutional implications. It included Susan Appleton, the Lemma Barkeloo & Phoebe Couzins Professor of Law; Ashutosh Bhagwat, professor of law, University of California Davis School of Law; and Robert Vischer, professor and associate dean, University of St. Thomas Law School.

While Bhagwat praised Liberty’s Refuge for “rediscovering the fact that the First Amendment includes rights other than speech,” he believes that Inazu’s focus on “expression” can be read as making other rights “subservient to speech.” “The purpose of assembly is not to enable speech,” he said. “The reason that groups have a right to choose their members is because that’s what it means to be a group.”

Appleton discussed three “threads” of Inazu’s book—his controversial stance on the would-be divide between public and private, his call for a “do-over” rather than a supplement to the right of association, and the impact a “done-over” approach to association would have on “intimate association,” especially for women.

Vischer, like Appleton, disagreed with Inazu about aspects of the right of “intimate association,” but he praised Inazu for his “ability to pursue a framework for taking liberty claims by groups seriously in a political culture that seems hard-wired for the championing of personal rights.”

Following the panelists’ critiques of the book, Inazu jokingly said that an alternative title for his book might have been “In Defense of Crazy People,” because historically assemblies have been made up of people “outside of the mainstream, and the same is true today.”

The Tea Party and Occupy movements, for example, have “lots of strangeness, and we’re not sure what to do with it,” he observed. While the right of assembly can be pushed to “points that make us uncomfortable,” Inazu said, the greater risk is that we convince ourselves that “strange” means “crazy” or “dangerous” to justify the restrictions we place on groups that we don’t like.

By Timothy J. Fox