Pope, James Gray. Republican Moments: The Role of Direct Popular Power in the American Constitutional Order. University of Pennsylvania Law Review, Vol. 139, No. 2 (Dec., 1990), pp. 287-368
“See H. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 65 (1981); see also L. LEVY, EMERGENCE OF A FREE PRESS 221-22 (1985) (arguing that the anti-federalists merely used the Bill of Rights as a tactical pawn in their struggle to preserve state autonomy). While it is true that the Bill of Rights played a distinctly secondary role in anti-federalist thought, see infra notes 260-62 and accompanying text, it does not follow that anti-federalist thinking is unhelpful in determining the original meaning of the right of assembly. As Akhil Amar has shown, the Bill of Rights was “significantly more influenced by AntiFederalist thought than was ‘Madison’s original constitution.'” Amar, The Bill of Rights as a Constitution (forthcoming 100 YALE LJ. (1991)).
“In particular, when it was necessary, the anti-federalists were willing to fight for rights of popular control over representative government. Although they spoke up in support of the right of assembly, the lack of any serious challenge obviated the need for passionate debate. On the question of a right to instruct representatives, on the other hand, the anti-federalists forced one of the most hotly contested debates on any proposed provision of the Bill of Rights. See 1 ANNALS OF CONG. 761-76 (J. Gales ed. 1834) [hereinafter ANNALS (J. Gales ed. 1834)]; see also infra text accompanying notes 267-70” (341).
Next 3 together from paper:
“The most illuminating statement, however, came in the debate over a proposed clause that would have given the people the right “to instruct their representatives.” Like the right of assembly, instruction was favored by the anti-federalists, who viewed both as means of increasing the people’s role in government. Although successful on the assembly clause by a considerable majority, the anti-federalists were defeated on instruction by a vote of 41-10. James Jackson of Georgia, one of the swing votes, explained that he was in favor of the right to assemble because “it had been used in this country as one of the best checks on the British Legislature in their unjustifiable attempts to tax the colonies.” The right to instruct, on the other hand, would bind the representatives, thus promoting factionalism and preventing the representatives from exercising their individual consciences.
“Jackson’s statement suggests that the right of assembly should be viewed as incorporating a direct, popular supplement to strong representative government. The Constitution had shifted power from the local and state levels, where the people had been directly and passionately involved, to the national level, where cool-headed and public-minded representatives would practice sound government. Jackson embraced this design, but only as a plan for politics-as-normal. With Madison, he opposed the right to instruct because direct popular control over representatives would negate their individual judgment and remove any possibility of deliberating toward a unified view. But Jackson could not agree to “the total exclusion of the people, in their collective capacity” from the government. As the reference to the tax resistance makes clear, he saw the right of assembly as a protection for forceful, collectively organized, and direct popular pressure.
“This strong reading appears to be the natural one. Sedgwick’s weak reading is implausible given the historical proximity of strong usage by the American resistance movement and the Shaysites. Indeed, the right had been invoked almost exclusively to justify exercises of popular power; there was no need to defend meetings called merely to discuss issues or advocate viewpoints.275 As Jackson’s and Gerry’s remarks indicate, these events were on the minds of the framers. Their apparent conclusion was that the value of the people assembled as a check on representative government justified a degree of political instability and the risk of violent abuses” (343-344).
“Jackson argued that the right of instruction “would necessarily drive the house into a number of factions. There might be different instructions from every State, and the representation from each State would be a faction to support its own measures.” 1 ANNALS (J. Gales ed. 1834), supra note 257, at 764. Madison emphasized the importance of the congressman’s individualjudgment: uSuppose he is instructed to patronize certain measures, and from circumstances known to him, but not to his constituents, he is convinced that they will endanger the public good; is he obliged to sacrifice his own judgment to them?” Id. at 767” (344).