U.S. Constitution For Dummies by Dr. Michael Arnheim

Author:Dr. Michael Arnheim
Language: eng
Format: epub
ISBN: 9781119387367
Publisher: Wiley
Published: 2018-06-06T00:00:00+00:00

Protecting the Right to Assemble and Petition

The right to march to Washington, D.C., and make your feelings known to the government is still an important one, but probably less important than it was in the early days of the nation, before the rise of the party system, before radio, before television, and before the Internet.

The connection between the right to assemble and the right to petition can easily be seen, and so can the connection between the right to assemble and the right to free association — which has been interpreted to allow membership of labor unions and other associations.

United States v. Cruikshank, decided in 1875, is one of the few leading cases on this aspect of the First Amendment. An armed white mob clashed with a large gathering of African Americans at the courthouse in Colfax, Louisiana, at the time of a gubernatorial election. Some whites were charged under a Louisiana law that made it a felony for two or more persons to “combine, conspire, and confederate together, with the unlawful purpose of depriving United States citizens of African descent” of their civil rights. The U.S. Supreme Court threw out the indictments for vagueness. But the most important part of the ruling in Cruikshank was to refuse to apply the First Amendment to the states. In other words, the high court did not regard the First Amendment as “incorporated” by the Fourteenth Amendment’s Due Process Clause. The Court held that the First Amendment applied only to the national government.

However, the U.S. Supreme Court now regards the whole of the First Amendment as “incorporated” — including the right to petition and freedom of assembly. So the states are now subordinate to the feds in regard to these rights also.

In the 1937 decision in De Jonge v. Oregon, a unanimous U.S. Supreme Court overturned the conviction of a Communist leader for addressing a meeting allegedly advocating “criminal syndicalism and sabotage.” The high court declared the interpretation of the Oregon law by the Oregon Supreme Court to be “repugnant” to the First Amendment as incorporated into the Due Process Clause of the Fourteenth Amendment.

National Socialist Party of America v. Village of Skokie is an interesting and highly controversial 1978 case illustrating the conflicting forces at work. A neo-Nazi group wanted to stage a march through the village of Skokie, Illinois, a largely Jewish area. The local authorities wanted to keep the neo-Nazis out. The Illinois Supreme Court, upheld by the U.S. Supreme Court, refused to ban the march. The Illinois Supreme Court even specifically refused to ban the display of the swastika emblem — using the rather dubious parallel of permission given to war protesters in another case to wear black armbands. In the end, the neo-Nazis didn’t march through Skokie, but they had won a legal victory without doing so.

Surprisingly perhaps, the neo-Nazis had the backing of the generally left-leaning American Civil Liberties Union (ACLU), whose stated mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.

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