#-4: Right to Instruct [Fellman]

NOTES:

Fellman, David. Constitutional Rights of Association. The Supreme Court Review, Vol. 1961 (1961), pp. 74-134.

****Theoretical analysis and Founders.

The following is an excerpt from 80-84.

“That the rights of peaceable assembly and petition have deep roots in the American experience is reflected in the frequency with which they were asserted in the formative period of American his- tory. Thus, the Stamp Act Congress of 1765 asserted “That it is the right of the British subjects in these colonies to petition the King or either House of Parliament.” The First Continental Congress, on October 14, 1774, adopted a “Declaration and Resolves” that, among other things, asserted that Americans “have a right peace- ably to assemble, consider their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.” The Declaration of Independence recited that “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms. Our repeated Petitions have been answered only by repeated injury.” Four of the revolutionary states’ constitutions spelled out a guaranty of rights to assemble and petition. Thus, the North Carolina Constitution of 1776 declared: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”

“The constitutional convention of 1787 did not include a bill of rights in its finished document. When Richard Henry Lee tried, without success, to attach a bill of rights, he included the right of assembly. When the states ratified the Constitution, four of them formulated amendments to include a guaranty of rights of assembly and petition.” After ratification of the Constitution, James Madison’s proposed bill of rights included the following: “The people shall not be restrained from peaceably assembling and consulting for their common good: nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.” When the amendments were reported by the select committee on July 28, 1789, the provision had taken this form: “The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” This amendment passed the House of Representatives in this form on August 24, 1789.

“This did not occur, however, until after debate in the House on Saturday, August 15, and Monday, August 17. The debate on Saturday centered on a proposal made by Sedgwick of Massachusetts to delete the words “assemble and” from the clause, on the ground that the inclusion of the right of assembly with the rights speech and press was improper and unwise because the former is too trifling and obvious. “If people freely converse together, they meet to assemble for that purpose; it is a self-evident, inalienable right which the people possess; it is certainly a thing that never would be called in question.” He said that it was like listing the right to put on your hat, and insisted that “it is derogatory to the dignity of the House to descend to such minutiae.” But several members of the House opposed Sedgwick’s motion. Benson of New York thought it wise to secure an inherent right of the people against infringement by government. Tucker of South Carolina ex- pressed the hope that the words would not be stricken, and both Gerry of Massachusetts and Hartley of Pennsylvania called attention to the fact that the right of assembly was included in several state constitutions. Vining of Delaware stated that incorporation of these words would gratify the states. Page of Virginia called attention to the fact that the right of people to assemble together on lawful occasions had been violated in the past and ought to be safe- guarded. “If the people could be deprived of the power of assembling under any pretext whatsoever,” he declared, “they might be deprived of every other privilege contained in the clause.” The record of Congress shows that following this brief debate, the motion to strike the words “assemble and” failed “by a considerable majority.”

“The rest of the debate on the right-of-assembly clause centered on a motion by Tucker to add the words “to instruct their representatives.” The right of the people to instruct their legislative representatives having deep roots in colonial practice,” the Tucker motion touched off an interesting debate on the theory of the function of the representative. Hartley argued vigorously against the motion on the ground that representatives should be presumed to know the interests and circumstances of their constituents and to have their confidence. He also doubted whether the people of a locality would be sufficiently well informed to understand the needs of the nation as a whole, and he feared that if a representative listened to all the voices in his constituency, he would find it impossible to accommodate so many different desires. In reply, Page argued that without the power to instruct their representatives, the people would be unable to consult for the common good. He made the point, then widely held, that instruction and representation were inseparable. Gerry maintained that even if the right of instruction were specifically spelled out in the Constitution, the representative would still be at liberty to act as he pleased; but he could see no harm in including it if only to encourage people, particularly the diffident, “to come forward with their instructions, which will form a fund of useful information for the Legislature.” But the contrary view prevailed. Madison argued that the added words could do no “real good” because the people already had the right to communicate their sentiments and wishes to their representatives. William L. Smith of South Carolina thought that Tucker’s proposal would be a partial inconvenience to the more distant states, and Stone of Maryland went so far as to assert that it would change government entirely from a representative system to a “democracy of singular properties.” Perhaps the most telling argument was that if the representatives adopted laws that were not satisfactory to the people, the people had it within their power to withdraw their support and vote for others.

“A clause guaranteeing the rights of assembly and petition is found today not only in the national Constitution, but also in all but four state constitutions. That such guaranty is not out of style is reflected in the new constitutions of Alaska and Hawaii. A clause in the Texas Constitution includes most of the stock phrases: “The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.” Almost all state constitutional clauses on this subject speak of “peaceful” or “orderly” assembly, or the right to assemble “peaceable majority also speak of the purpose of assembly, whether “to consult for the common good,” or “to apply to the state government,” or “to instruct their representatives.” Finally, a large majority describe the method of redress to be used, generally by “petition,” though such phrases as “remonstrance” and “redress” are also used” (80-84).

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