Does the right to peaceably assemble protect the right to petition?

August 28th, 2013

A recent article in WaPo explores the history of the Mall, and provides this vignette of the history of what we now call marches.

The first march on Washington — at least as we now tell the story of history — was Coxey’s Army, a pilgrimage of unemployed men in 1894. About 500 came to the District under the leadership of an Ohio businessman named James Coxey to lobby the government for jobs.

It wasn’t considered a march then; in fact, nobody really knew what to call it. “They sort of didn’t have a vocabulary for that kind of mass march,” Barber says. The vocabulary issue was a literal one: At that time, the form of civil engagement most familiar to the common man was mass petitions, signed by hundreds and then dropped off at government buildings. The idea of hordes descending upon Washington in person was difficult to conceptualize, so journalists eventually described Coxey’s Army not as a “march,” but using terminology everyone could understand: “Petition in Boots.”

So let’s turn to the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Does anyone know if there has ever been any research done linking the bolded clauses? That is, does the right to peaceably assemble ensure the right to petition for a redress of grievances? I know today that these clauses are treated as separate, and there is an entire slew of case-law about the right to assemble, and its related right of free association.

David Bernstein’s post in the Heritage Guide to the Constitution offers one entry to describe the clauses, and provides that some viewed the right of assembly as an “adjunct” to other rights (such as the right to petition?):

When considering the Bill of Rights, Congress approved the right to petition with little controversy. The right to assembly was somewhat more controversial. Four of the original thirteen states expressly guaranteed the right of assembly in their constitutions or charters in 1789. This right, however, was considered more of an adjunct to other rights than an independent right. Representative Theodore Sedgwick moved to strike the words “to assemble and” from what became the First Amendment. He believed the words to be unnecessary surplusage. He argued, “If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question.” Sedgwick lost, however, in part because many believed that the right of the people to assemble encompassed the right to assemble in a constitutional convention and change the structure of government, a right in fact established in the Constitution itself in Article V.

BTW, Sedgwick has one of my favorite lines in the entire constitutional convention, which Randy Barnett discussed in a 1991 Law Review Article.

This open-ended conception of rights is illustrated by a fascinating exchange that occurred during the debate in the House over the wording of what eventually became the First Amendment proposed by the House Select Committee.  At one juncture in the debate, Representative Theodore Sedgwick criticized the committee’s inclusion of the right of assembly on the grounds that ‘it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called into question; it is derogatory to the dignity of the House to descend to such minutiae. . . .” 18 Representative Egbert Benson replied to Sedgwick that: “Me committee who framed this report proceeded on the principle that these. rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.” 19Sedgwick then responded that:

if the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper …. 20

Notice that Sedgwick was not denying that one had a right to wear one’s hat or go to bed when one pleased.  To the contrary, he equated these inherent rights with the right of assembly which he characterized as ‘self-evident’ and unalienable.” 21 Indeed, Representative John Page’s reply to Sedgwick made this explicit ‘[L]et me observe to him,” said Page:

that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have also been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights. 22

Sedgwick’s point was that the Constitution should not be cluttered with a potentially endless list of trifling rights that “would never be called in[to] question” 23 and were not ”intended to be infringed.” 24 Sedgwick’s argument implicitly that the ‘self-evident, unalienable,’ and inherent liberty rights retained by the people are unenumerable because the human imagination is limitless.  It includes the right to wear a hat, to get up when one pleases and go to bed when one pleases, to scratch one’s nose when it itches (and even when it doesn’t), and to take a sip of Diet Coke when one is thirsty.

H/T Steve R.