In this connection it is well to remember that in the early days of our Republic—when the element of commitment was strong—there was a considerable suspicion of private associations, lodges, and societies. Madison in The Federalist (No. X) wrote of the “dangerous vice” of “faction.” Our Constitution contains no explicit guaranty of the right to form associations, but speaks instead in the First Amendment of “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Founding Fathers seem to have contemplated that as soon as “the people” had respectfully filed their petition, they would quietly and submissively retire to their homes. Some of the attitudes that we now confidently ascribe to totalitarianism and its intolerance of dissent were not absent in the early, anxious days of our own country.
—Lon Fuller, “Two Principles of Human Association”Footnote 1
I. Introduction
Despite influential criticisms of liberalism as reducible to an “unencumbered” or “possessive individualism,” many prominent liberal thinkers in the latter half of the twentieth century have regarded freedom of association as both a necessary and a sufficient condition for a good society.Footnote 2 The philosopher Michael Oakeshott not only thought that a free society was integrated by a wide variety of “enterprise associations” formed for the more satisfactory pursuit of individual ends, but indeed thought that the freedom of association was perhaps the single most important of liberal freedoms.Footnote 3 Freedom of association distinguished what F. A. Hayek termed the “true individualism” of Edmund Burke, Alexis de Tocqueville, and Lord Acton from the “false individualism” of the French Revolutionaries, who sought to demolish every intermediary link between individual and state.Footnote 4 Likewise, the contemporary political theorist George Kateb has argued that being a free individual necessarily means one has the right to choose those with whom one wants to associate (or not to associate).Footnote 5 Either to deny or to compel association with others negates the ability to control one's own identity and life-choices. This kind of “compulsory-voluntary association” is anathema to a free society.Footnote 6
Nonetheless, as Lon Fuller's provocative quotation above reminds us, classical liberal philosophers of the seventeenth and eighteenth centuries were often lukewarm to the idea of free association—and perhaps rightly so. Individuals need to be able to associate in order to fulfill their desires and, if necessary, oppose the actions of government or other vested interests in society. But with the augmented power of concerted action comes the potential to threaten other individuals, groups, or even the political authority upon which liberty itself rests. No surprise, then, that at least some of those Founders to whom Fuller refers were deeply ambivalent about the free association of citizens—whether into conspiratorial political factions, divisive religious sects, or monopolistic economic corporations.
Above and beyond the fact that the abuses of the freedom of association are arguably more destabilizing than other liberties like speech, religion, or the press—and, thus, the former might conceivably be more legitimately bounded or circumscribed—there are also questions about the moral status of the freedom of association.Footnote 7 Is there a right to associate that is conceptually analogous to other basic liberties like speech, religion, or press? Pope Leo XIII boldly adduced a natural human right to associate in his 1891 encyclical “Rerum Novarum,” and the doctrine has been a mainstay of Catholic social thought.Footnote 8 But it is telling that classical liberals rarely cited freedom of association among their lists of canonical liberties like speech, conscience, press, property, etc.Footnote 9 The United States Constitution makes no explicit provision for the freedom of association, and the French government ceded the right of voluntary association only with the Law of July 1, 1901 (belatedly accorded full constitutional status in 1971). This was after having abolished a wide range of voluntary associations during the Revolutionary years of 1791 to 1793.Footnote 10 We have come a long way indeed from the complaints of Thomas Hobbes, David Hume, Adam Smith, and James Madison about seditious “sects” and divisive “factions” to Article 20.1 of the United Nations Universal Declaration of Human Rights stipulating a universal human right to “freedom of peaceable assembly and association.”Footnote 11
The historical and conceptual question, then, is whether and in what respects freedom of association differs from other core liberal freedoms. Why were classical liberal thinkers generally unwilling to extol it even as they lionized inalienable natural rights of speech, press, conscience, and private property? And why has the question of freedom of association in American constitutionalism so often been filtered through the murky lens of other cognate freedoms like expression or intimacy? In what follows, I want to suggest that some insights (if not definitive answers) are to be found in the intellectual history of liberalism. Indeed, I will push Fuller's observation further, drawing attention to the ways in which these assorted misgivings about the free association of citizens were not just an artifact of the “anxious days” of our own Founding, but were a common political and sociological refrain in the tradition of Anglo-American liberalism.
Fuller may be hyperbolic in characterizing the ideas of James Madison or others of the Founding generation as akin to “totalitarianism” or an “intolerance of dissent,” but Madison's complaints about faction in Federalist No. 10 and elsewhere in his political writings seem to be an especially fruitful case for understanding classical liberal arguments both for and against the freedom of association. Given the suspicion of association and faction voiced in The Federalist, it seems reasonable to conjecture, as Fuller implies, that Madison would have supported provisions to curb freedom of association, as did many of his contemporaries and political opponents. However, despite Madison's well-known complaints about the incendiary effects of faction, he proved to be a staunch defender of the freedom of association over and against some of the very same attitudes Fuller alludes to in the above-cited quotation. I want to explore this paradox further, teasing out the considerations by which Madison could simultaneously lament the destructive effects of freedom of association while defending the principles upon which it is based.
II. Thomas Hobbes and the Dangers of Associational Liberty
Madison's ambivalence makes perfect sense in light of his precursors in the Anglo-American tradition. Maybe the most adamant critic of the freedom of association was Thomas Hobbes, whose 1651 work Leviathan described associations as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man.”Footnote 12 It is at the very least anachronistic and at worst wrongheaded to characterize the absolutist Hobbes as a “liberal,” but his assumptions that government originates in the will of the people, that subjects are equal in the eyes of the law, and that the ends of civil association should be limited to the task of maintaining peace and security were noteworthy developments in the tradition of Anglo-American liberalism.Footnote 13 More pertinent to the subject of associations, however, Hobbes's deep-seated pessimism about the irrational and disruptive proclivities of individuals in groups sets the tone for the next century and a half of theorizing about the problems inherent to the freedom of association.
For all of his vaunted individualism, Hobbes operates under the sociological assumption that groups amount to more than just the sum of their parts, and that they should be regarded as such by the sovereign. Religious fanaticism, panic terror, rage, or other violent and uncivil behavior “happens to none but in a throng, or multitude of people.”Footnote 14 Normally reasonable, clear-thinking individuals are liable to be carried away by the proximity of those around them. Overcome by “madness,” and spurred on by the “neighbourhood also of those that have been enriched by it,” otherwise decent individuals will descend to moral atrocities they would never dare if left to their own devices:
Though the effect of folly, in them that are possessed of an opinion of being inspired, be not visible always in one man, by any very extravagant action that proceedeth from such passion, yet when many of them conspire together, the rage of the whole multitude is visible enough. For what argument of madness can there be greater, than to clamour, strike, and throw stones at our best friends? Yet this is somewhat less than such a multitude will do.Footnote 15
Moreover, sectarian and partisan conflicts have an emotional intensity rarely encountered in other spheres of civil life: “there are no wars so sharply waged as between sects of the same religion, and factions of the same commonweal, where the contestation is either concerning doctrines or political prudence.”Footnote 16
Under ideal conditions, Hobbes concedes a good deal of freedom to individuals within what he calls the “silence of the law.”Footnote 17 Unfortunately, he leaves no analogous room for the freedom of private associations.Footnote 18 Combinations for “kindred,” “religion,” or “of state” are all “unjust, as being contrary to the peace and safety of the people.”Footnote 19 Private groups should be regarded as conspiratorial if only because they are invisible to the prying eyes of the sovereign: “For all uniting of strength by private men is, if for evil intent, unjust; if for intent unknown, dangerous to the public and unjustly concealed.”Footnote 20 Whether the associations Hobbes had in mind were dissenting religious sects, fractious political parties, roving bands of soldiers, universities, municipalities, or other potentially divisive entities within the body politic, associational life would always be a limiting condition on the sovereign authority he believed absolutely necessary to secure liberty.
III. Classical Liberalism and Associational Freedom
One of the central developments in the history of religious toleration—and ipso facto of classical liberalism—was John Locke's break from Hobbes's empirical assessment of the necessarily violent and illiberal nature of groups. While concurring with Hobbes that a liberal regime must draw the line at tolerating (religious) groups whose uncivil behaviors or beliefs are inimical to political society itself, Locke argues that precisely because religious congregations are no different from any other kind of “free and voluntary Society,” they deserve to be tolerated under most ordinary circumstances.Footnote 21 He adamantly denies Hobbes's allegation that assemblies of individuals are necessarily “Conventicles, and Nurseries of Factions and Seditions.”Footnote 22 “You'll say,” Locke anticipates, “That Assemblies and Meetings endanger the Publick Peace, and Threaten the Commonwealth.” But “if this be so,” he replies, “Why are there daily such numerous Meetings in Markets, and Courts of Judicature? Why are Crowds upon the Exchange, and a Concourse of People in Cities suffered?”Footnote 23 Why, then, are political and religious groups singled out as factious and seditious?
Any tendency of groups to become violent and seditious has nothing to do with the activities toward which they are devoted: “Some enter into Company for Trade and Profit: Others, for want of Business, have their Clubs for Clarret. Neighbourhood joyns some, and Religion others. But there is one only thing which gathers People into Seditious Commotions, and that is Oppression.”Footnote 24 Rather than anything “peculiar unto the Genius of such Assemblies,” the tendency of religious groups to become factious is one of the “unhappy Circumstances of an oppressed or ill-settled Liberty.”Footnote 25 Almost any group affiliation could become a source of conflict if the state were to make it the basis of legal discrimination. “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.Footnote 26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one's money, manage one's estates, or marry off one's daughter.Footnote 27
Notwithstanding Locke's sociological optimism about the peaceful qualities of groups, even his own defense of religious and political associations is framed in terms of a prudential policy of toleration rather than a natural and inalienable right of free association. Indeed, Hobbes's original pessimism about associational freedom never entirely disappears from the classical liberal tradition. Even after the immediate threat of civil war and revolution has passed, eighteenth-century philosophers like David Hume share Hobbes's worries about the divisive and irrational properties of individuals in groups. Hume in particular is adamant that “factions subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation.”Footnote 28 Hume's most extended and best known ruminations on the problems of associational life are his essays on political parties. There he distinguishes between parties of interest, affection, and principle. The former are both the most common and potentially manageable, whereas the latter “parties of principle, especially abstract speculative principle,” represent the “most extraordinary phenomenon, that has yet appeared in human affairs.”Footnote 29
Hume is every bit as concerned as Hobbes about the violent and disruptive nature of groups, but his argument is finer-grained. Hume distinguishes, for instance, between different kinds of parties—of affection, interest, and principle—which pose different degrees of danger to civil society. Likewise, he can praise the more generalized benefits of a “civil society”—in the form of sociability, humanity, politeness, refinement, and the arts of conversation—even while acknowledging the divisive tendencies of certain kinds of ideological political and religious groups. Hume even hints at some rudimentary institutional and sociological remedies to the problem of groups, attempting to render freedom of association of as little threat to political authority as possible. First, like Locke, Hume believes that removing invidious legal distinctions is likely to blunt the edges of resentment that sometimes generate factional groups.Footnote 30 Second, he believes that a commercial society will polish away the “barbarous” rough edges of sectarianism and partisanship, recasting incommensurable conflicts of principle into more reasonable and “mensurable” conflicts of interest.Footnote 31 Third, he believes that publicity—or public deliberation about ideas and principles—helps to diffuse the negative energies of fanatical political groups.Footnote 32 Lastly, he believes that the increased humanity of a more cosmopolitan society discourages the jealousy and parochialism that make different groups—religious, ethnic, or national—suspicious of one another and liable to uncivil behavior.Footnote 33
IV. James Madison, Faction, and American Constitutionalism
I would submit that the American Founders inherited two different and contradictory sensibilities from the tradition of Anglo-European liberalism. The first, obviously, is solicitude for liberty and the desire to protect traditional liberties from encroachments by the state. The second and less observed attitude is a generalized suspicion of groups, especially those founded on high degrees of emotional commitment. Not only did such groups threaten the fragile new political order established by the U.S. Constitution, as Fuller notes above, but they were objectionable from a classical republican standpoint as well, taking something away from the commitments that all good republican citizens were supposed to share with one another and the new republic as a whole.Footnote 34
Even before the Constitutional Convention of 1787, many complained of the factional and conspiratorial dangers of the Society of the Cincinnati, a hereditary association of Revolutionary War officers established in May of 1783 by Major-General Henry Knox, and later presided over by George Washington and Alexander Hamilton. While its nominal goals were the advancement of the cause of union and the charitable support of former army officers and their families, it was widely perceived as an elite conspiracy intended to pervert the new republic in the interest of its own members.Footnote 35 Some, like Benjamin Franklin and Thomas Jefferson, objected most keenly to the Society's aristocratic overtones, while others like South Carolina's Aedanus Burke specifically protested the voluntary or “self-created” character of the free association, sure evidence of its “fiery, hot ambition, and thrill for power” that could only end up as a “source of civil dissension and misery.”Footnote 36 According to Madison's notes from the Constitutional Convention, Elbridge Gerry of Massachusetts feared that “the power of some one set of men dispersed through the Union & acting in Concert” might delude the masses during popular elections. “Such a Society of men,” Gerry complained, already “existed in the Order of the Cincinnati. They are respectable, United, and influential. They will in fact elect the chief Magistrate in every instance, if the election be referred to the people.”Footnote 37
This prejudice against groups as factional and conspiratorial, destined to unbalance the delicate Hobbesian equilibrium between liberty and authority, persists into debates surrounding the ratification of the American Constitution. The most famous attempt to balance this tension is James Madison's discussion of faction in Federalist No. 10, which sheds light on several aspects of the nature and limits of freedom of association. First, at least in this discussion, Madison is remarkably indifferent to the dimension of association with which we are most often concerned today: namely, the ends or purposes of association. He may be able to skirt this thorny matter of sorting out the various ends—whether of “good” or “bad,” “civil” or “uncivil” groups—because his working definition already presupposes that the ends of factions are contrary to the common good: “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”Footnote 38
A capable student of David Hume, Madison is well aware that factions may be subdivided into those whose animating causes are based in principle (“a zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice”), in affection (“an attachment to different leaders ambitiously contending for pre-eminence and power”), or in interest (“the most common and durable source of factions, has been the various and unequal distributions of property”).Footnote 39 Nonetheless, after briefly cataloging these various causes, which captivated Hume in and of themselves, Madison focuses almost exclusively on the effects of faction. Whether factions have their roots in the religious sects of a particular part of the country, the ambitions of local demagogues, or the more fundamental but less intractable conflicts between propertied and propertyless becomes secondary to the question of the remedies best calculated to alleviate their most pernicious effects.
Madison is less concerned than we might expect with the relative intensity of group commitments. While distinguishing between commitments founded in “passion” and those arising from “interest,” and indicating a general preference for the latter over the former, the question of the degree of commitment of association gets transformed into a matter of numbers and of scale, that is, majority faction versus minority faction. It is simply given that “factious leaders may kindle a flame within their particular states” and that religious sects “may degenerate into a political faction in parts of the confederacy.” Using a metaphor of the body politic and its susceptibility to disease (in the style of Thomas Hobbes), Madison reasons that just as “such a malady is more likely to taint a particular county or district, than an entire state” so too any “improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it.”Footnote 40
In one sense, then, these small, localized groups are likely to be more intensely committed (and thus dangerous) than large groups whose very scale and abstraction dispels the emotional attachments of their members. However, in another light, their intimacy and intensity limits their dangers to the nation as a whole, as a “greater variety of parties,” “dispersed over the entire face” of the union, provides security against the dominance of any single overbearing majority faction. Not only does the “encreased variety of parties” that one finds on a national scale function to check the influence of any single one of them, but the vast scale of national politics frustrates the intimate “concert” and conspiracy of “secret wishes” that make parties dangerous.Footnote 41 The scale of an extended republic prevents local flare-ups from turning into a “general conflagration.”Footnote 42 The institutional safeguards set in place by the new Constitution—the extended republic, representation, and federalism—all make this contagion less likely to spread throughout a vast extended republic like the United States. Local majorities are transformed into national minorities, who must then recombine or associate themselves with other minority groups in order to achieve their goals. Because these new compound, national majorities will inevitably be the product of compromise, deliberation, and aggregation, they will tend to lack the uncompromising intensity of local majorities.
Like Hobbes and Hume before him, Madison acknowledges the sociological effects of group affiliations on individual citizens. This social psychology of group conflict runs consistently throughout Madison's remarks on faction—before, during, and after the Constitutional Convention—coming to fruition in his celebrated Federalist No. 10. Not only is rectitude “as little regarded by bodies of men as by individuals,” but “respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided.” If the moral conscience is often “inadequate in individuals,” even less is to be expected from it among groups.Footnote 43 Moral and religious inhibitions on the “injustice and violence of individuals,” already uncertain, “lose their efficacy in proportion to the number combined together.”Footnote 44 Even individuals acting on the most pious oaths have been known to “join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.”Footnote 45 Far from moderating the evil tendencies of collective action, religious enthusiasm only exacerbates those tendencies, as “its force like that of other passions, is increased by the sympathy of a multitude.”Footnote 46 Although it has proven difficult to establish any direct intellectual influence, Madison's sociological assumptions about the special dangers of group conflict are highly reminiscent of the writings of Thomas Hobbes surveyed above.Footnote 47
Federalist No. 10 also tells us something provisional about the derivative or second-order status of freedom of association. Madison famously notes that “liberty is to faction what air is to fire, an aliment without which it instantly expires.” Nonetheless, Madison cautions, “it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”Footnote 48 Faction may be one of the most dangerous diseases of government, but it must be tolerated because of the intrinsic value of “liberty,” broadly understood. Freedom of association, as we will see, comes to be framed again and again less as a desideratum in and of itself than as a vexing offshoot whose existence is mainly justifiable as a subset or cognate of other more central and enumerable liberties.
Indeed, the roots of faction reach deep into human nature, according to Madison. Diversity of opinion stems from diversity of interests. This will always be the case because of the “diversity in the faculties of men, from which the rights of property originate” and whose “protection” ranks as the very “first object of government.”Footnote 49 Something as innocuous as the “possession of different degrees and kinds of property” leads to “a division of the society into different interests and parties.”Footnote 50 Unless one is willing to go so far as to redistribute property, Madison reasons, one must suffer the effects of faction and partisanship.
These “latent causes of faction” may be “sown in the nature of man,” but their “degrees of activity” and the forms in which they express themselves depend on the “different circumstances of civil society.”Footnote 51 Circumstances as different as the rivalries between charismatic leaders, a “zeal for different opinions concerning religion,” or even the most “frivolous and fanciful distinctions” have all, at different moments, “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.”Footnote 52 Nonetheless, of all these circumstances, “the most common and durable source of factions has been the various and unequal distribution of property.”Footnote 53 More than almost anything else, then, a commitment to the sanctity of the right to private property both condones the freedom of association and dictates the need to find some way to control its most obnoxious effects.
Madison seems in The Federalist to take it for granted that the existence of faction is simply the price one has to pay for a society that sanctifies natural inequalities of property, but in his 1792 essay “Parties,” he acknowledges the possibility of changing (or at least moderating) distributional conflicts. That is, while government needs to protect property rights, it need not accept vast extremes of wealth and poverty as a given. These conflicts could be minimized by guaranteeing political equality to all persons and groups, and, conversely, avoiding all invidious distinctions that arise when public measures “operate differently on different interests.”Footnote 54 More radically, Madison alludes to the “silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort.”Footnote 55 Although he does not specify here what such laws might consist of, his later writings are more explicit about the salutary effects of laws of inheritance such as those enacted in the state of Virginia that abolished primogeniture and entail, encouraging the free exchange of small tracts of property and facilitating social mobility.Footnote 56 Thus, despite Madison's demurrer in The Federalist, the subtle legislator can act to mitigate the causes of faction, and not just its effects.
Madison's discussion of the problems of majority faction appeals to institutional solutions. Or, to put this differently, freedom of association can exist because its most egregious effects are controlled by political institutions (the Constitution's extended republic, representation, and federalism). However, as Madison notes in 1792, the rise of political parties in the United States creates a new dilemma. Whereas the logic of the extended republic was to convert local majorities into national minorities, the logic of the two-party system operates in precisely the opposite direction. The basic structure of society means that parties are “unavoidable” because of a “difference of interests, real or supposed.” These opposing interests and parties are rooted in the very “nature of things,” by which Madison presumably means the permanent and naturally opposed interests of rich and poor. Above and beyond crafting political institutions that render these parties “checks and balances to each other,” such as those constitutional mechanisms outlined and defended in Federalist No. 10, the dangers of political parties may require ongoing management that is as much social as political.Footnote 57
This is a consistent lament throughout Madison's contributions to the Constitutional Convention and his subsequent struggles, as a member of Congress and later as president, against the dominance of the Federalist Party. “All civilized Societies,” Madison worries during the Constitutional Convention, are “divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader—the disciples of this religious Sect or that religious Sect.”Footnote 58 However, the situation of parties in the early republic provides a basis for his concerns that the institutional design of the extended republic may have been inadequate to stem the influence of majority faction, in particular the designs of the wealthy to oppress the poor.
As described in a later 1792 essay of Madison's titled “A Candid State of Parties in the United States,” the short history of the American regime may be subdivided into three distinct eras of partisanship. In the pre-Revolutionary era, there were divisions between those who sought the independence of the Colonies and Loyalists who resisted the break from the British Empire. In the immediate post-Revolutionary era, there were divisions between Federalist defenders of the Constitution and its Antifederalist critics. After the successful ratification of the Constitution, the American regime saw the rise of two much more natural and permanent sources of partisanship in the antagonism between the Federalist Party, rooted in the interests of the wealthy and privileged classes, and Jefferson's Democratic-Republicans, seeking to represent the republican interests of the many.Footnote 59
Ironically, despite everything Madison argues about the dangers of majority faction in The Federalist, the main problem with the American party system is not that those republican citizens who constitute a natural majority throughout the entire society will impose their interests on the wealthy minority. The real threat is that the “antirepublican (or Federalist) party, as it may be called, being the weaker in point of numbers,” will seek to strengthen itself with “men of influence” who are always “the most active and insinuating.”Footnote 60 Being a natural minority in society, this moneyed interest will seek to exploit differences among those who have a common love of republican opinions by “reviving exploded parties, and taking advantage of all the prejudices, local, political, and occupational, that may prevent or disturb a general coalition of sentiments.”Footnote 61
Although the ultimate sources of faction flow out of government's responsibility to secure the rights of private property, freedom of association is also mutually intertwined with the freedoms of speech, religious conscience, and press. If it is admitted that the government has the power to encroach upon any one liberty, Madison repeatedly enjoins, then the next logical step is tyranny. By its very nature, liberty—whether of speech, press, or conscience—must be absolute. In this respect, even if the freedom of association is more liable to abuses than other rights—as Madison himself sometimes seems to believe—it would nonetheless be a dangerous precedent to limit it. Madison emphatically rejects the Hobbesian line of reasoning by which any freedom that might conceivably threaten the peace and security of the regime can be taken away. In particular, as we will see below, to allow the federal government to censor the publications of some more extreme Revolutionary associations would set a dangerous precedent that any otherwise legal association could be singled out for repression: “To consider a principle, we must try its nature, and see how far it will go; in the present case … the effects of the principle contended for, would be pernicious.”Footnote 62
V. Madison's Defense of Freedom of Association
We have seen that Madison's empirical assumptions about the dangerous and destabilizing nature of freedom of association are not so different from those of classical liberals like Hobbes, Hume, and others who were ambivalent about groups. In light of Madison's lifelong preoccupation with the perils of party and faction, one might be surprised by the zeal with which he defended the rights of allegedly seditious and divisive groups. Unlike John Locke, who downplayed the dangers posed by religious or political groups, Madison bites the bullet and defends associational freedom despite the fact that he regarded groups and factions as a perpetual danger to the constitutional order. Most famous, of course, is Madison's opposition to the Alien and Sedition Acts of 1798. Less well-known, however, and leading up to this stand-off with John Adams and the Federalist Party is Madison's support in 1794 for what he terms the “self-created societies” of the Democratic-Republican Party which had come out publicly in favor of the republican principles of the French Revolution and which President Washington had accused of fomenting the Whiskey Rebellion.Footnote 63
This case of the “self-created societies” gets right to the heart of some crucial distinctions at stake in free association. The first is the preeminence of the criterion of the rule of law. So long as nothing that the Revolutionary societies had done was illegal, Madison vehemently opposes Federalist efforts to silence or censure them. “The law,” Madison notes, “is the only rule of right: what is consistent with that is not punishable; what is not contrary to that, is innocent, or at least not censurable by the legislative body.”Footnote 64 At least initially, the question is not framed in terms of whether there exists an inalienable freedom of association—analogous to the constitutional freedoms of speech and assembly enumerated in the Bill of Rights—that will be violated by the actions of the government. The matter is rather that the Constitution gives the legislature no more authority to censure the publications of otherwise legal private societies than it grants Congress to deal with undeniable crimes like murder or arson.Footnote 65 Any particular act of censure along these lines is the equivalent of a bill of attainder—specifically prohibited in the Constitution.
Reflecting on the issue privately in a letter to Thomas Jefferson, however, Madison frames the issue squarely within the idiom of inalienable rights: “The attack made on the essential & constitutional right of the Citizen in the blow levelled at the ‘self-created Societies,’ does not appear to have had the effect intended. It is and must be felt by every man who values liberty whatever opinions he may have of the use or abuse of it by those institutions.”Footnote 66 Freedom of association is just like any other right in the sense that “[animadversions] on the abuse of reserved rights” such as the freedom of association may be taken to “extend to the liberty of speech and of the press.”Footnote 67 As Jefferson wryly observes in his response to Madison, there is a supreme irony in the Federalist attempts to censure the publications of these “democratical societies, whose avowed object is the nourishment of the republican principles of our constitution,” when the Federalists themselves are “the fathers, founders, & high officers” of “the society of the Cincinnati, a self-created one, carving out for itself hereditary distinctions, lowering over our Constitution eternally, meeting together in all parts of the Union, periodically, with closed doors, accumulating a capital in their separate treasury, corresponding secretly & regularly.”Footnote 68
Another principle that emerges from Madison's writings is the legal commensurability between the actions of individuals and groups. Whether an enterprise is undertaken by “self-created societies” or by solitary individuals makes no difference, according to Madison. Regardless of whether the censure of such an enterprise “falls on classes or individuals it will be a severe punishment.”Footnote 69 Just as the fact of association affords no additional protections to the illegal actions of individuals, neither should the fact that otherwise legal actions are undertaken collectively subject them to any stricter scrutiny.
These same considerations inform Madison's better-known opposition to the Alien and Sedition Acts. Collectively, these four acts passed in 1798 by John Adams and his Federalist allies tightened standards for the naturalization of citizens, gave the president absolute power to deport aliens accused of seditious behavior or citizens of countries at war with the United States, and prohibited American citizens from criticizing acts of the president or Congress.Footnote 70 Like the earlier Federalist attack on the “self-created societies” in 1794, these laws were ostensibly passed to stave off the threat of domestic insurrection allegedly being fomented by the French, against whom Adams was expecting an imminent war. In practice, however, the laws targeted Adams's Democratic-Republican critics in the press, who were branded “seditious” Jacobins and French sympathizers. In particular, the so-called Sedition Act (“An Act for the Punishment of Certain Crimes against the United States”), enacted July 14, 1798, provides a punishment for any persons, whether United States citizens or not, who “shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States … or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty.” Likewise, it deems a “high misdemeanor” any effort to “counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not.”Footnote 71
Madison's draft of the Virginia Resolutions opposing these acts centers on two major claims. First, there is the familiar Madisonian idea that these laws usurp a “power no where delegated to the federal government” in the Constitution, one which would effectively blur the distinction between legislative, judicial, and executive powers.Footnote 72 In the case of the Alien Enemies Act, the notion that an individual or group might be judged by the president alone to be “dangerous to the public safety” or merely “suspected of secret machinations” and deported without legal proceedings represents a dangerous blurring of powers, for Madison. “They leave everything to the President. His will is the law.”Footnote 73
The second complaint in the case of the Sedition Act is that this law violates First Amendment freedoms (particularly those of speech and press) guaranteed in the Bill of Rights. It is this right of “freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”Footnote 74 While Madison acknowledges in the case of the Sedition Act that Congress undoubtedly has the power to suppress insurrections, “it would not be allowed to follow, that they might employ all the means tending to prevent them.”Footnote 75 A legitimate constitutional “power to act on a case when it occurs” does not imply a correlative “power over all the means that may tend to prevent the occurrence of the case.”Footnote 76
Interestingly, although the problem of association is explicitly mentioned in the Alien and Sedition Acts themselves, Madison says little about the associational dimension of the question. The allegedly usurped rights are of those of speech, communication, and the press—albeit taking place among citizens, whether formally associated or not. Even so, Madison's comments defending the Virginia Resolutions reveal that the freedom of the press may have an easily overlooked associational dimension. Given the impracticality of citizens actually gathering together to debate public policy or to examine the characters of their representatives, freedom of the press provides an important surrogate to formal association. The duration, scale, power, and magnitude of the new federal government demands some effective “channel” for “circulating an adequate knowledge” of public characters and measures.Footnote 77 Free communication is not in itself incendiary and seditious, Madison argues; it is the repression of free “information and communication among the people” that is most likely to “prepare a convulsion that might prove equally fatal” to the new republic.Footnote 78 Free speech and communication, then, not only operate as functional surrogates to association but also, perhaps, ameliorate some of the most destructive tendencies of faction. The implication seems to be that people must resort to association only in the absence of communication. As was the case for the Scottish philosophers who inspired Madison's political theory, publicity and the public sphere become functional equivalents of direct political action.Footnote 79
Madison's criticism of the Alien and Sedition Acts focuses preponderantly on their abridgment of First Amendment freedom of the press, but he argues that to allow any freedom of the Bill of Rights to be abridged is to jeopardize all the other rights outlined therein. If the federal government is ceded a right to regulate or constrain—even without completely abridging—the freedom of the press, then what prevents Congress from claiming an analogous prerogative to “regulate and even abridge” the free exercise of religion, so long as Congress stops short of actually prohibiting it? Any “indifference … now shewn to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein … may be fatal to the other, the freedom of religion.”Footnote 80 By this logic, Madison justifies an absolutist reading of the First Amendment protections accorded to speech, press, conscience, and religion. Interestingly, however, he makes no analogous argument on behalf of the similarly enumerated right of free assembly. This may be because he did not regard any of the recent government actions as sufficiently threatening of freedoms of assembly and petition, although surely the Alien and Sedition Acts could reasonably be construed as abbreviating the right of individuals to assemble as well as to express their frustrations with their representatives and their policies. Or perhaps Madison's curious silence on this associational dimension of the question was in deference to the intrinsically self-limiting character of the “right of the people peaceably to assemble.”Footnote 81 Here the text of the Bill of Rights is of no immediate help to Madison's argument, as it seems (uniquely in the case of freedom of assembly?) to introduce qualifications and correlative duties of civility for instances of organized political dissent.
VI. Freedom of Association and Freedom of Religion
Madison's ambivalence toward groups and the freedom of association that sustains them is not limited to the kinds of political groups we ordinarily think of as factions. As Madison noted late in his life in his “Detached Memoranda” (ca. 1819), the power of monopolies, local corporations, ecclesiastical establishments, charitable foundations, and other kinds of associations may pose a challenge to the well-being of the nation and the rights of other groups. “The ordinary limitation on incorporated Societies is a proviso that their laws shall not violate the laws of the land,” Madison observes, in keeping with his earlier criterion of the legal commensurability between individuals and groups. However, certain kinds of corporations and voluntary associations may take actions or accumulate large amounts of property in defiance of the public good even if their actions are “not in strict construction violating any law of the land.”Footnote 82 While he has in mind here the powers of chartered banks or other corporations whose interests may be at odds with those of the community as a whole, he is also concerned about “Ecclesiastic Bodies,” whose “silent accumulations & encroachments” have gone unnoticed and unchecked.Footnote 83 These “encroachments” may consist of attempts by religious groups to intertwine themselves with the state, as we will see below, but the less obvious “evil which ought to be guarded [against]” is their “indefinite accumulation of property from the capacity of holding it in perpetuity.” Indeed, Madison notes, the “power of all corporations, ought to be limited in this respect.” Even some of the greatest “Charitable establishments” of Great Britain pose a threat in this regard.Footnote 84
Despite all of these worries, however, not only is Madison a strong defender of the freedom of religious association but his defense of religious liberty is closely allied to his respect for the associational capacities of ordinary citizens. Responding to Patrick Henry's proposed bill to lay a religious assessment for the support of the Episcopal Church and its ministers on all the citizens of Virginia, Madison's 1785 “Memorial and Remonstrance Against Religious Assessments” lends credence to the view that Madison saw the segregation of religion from politics as the arrangement most conducive to both individual liberty and public order.Footnote 85 In Madison's (Lockean) view, it is the admixture of religion and politics that has resulted in the “Torrents of blood” spilt in Europe by “vain attempts of the secular arm, to extinguish Religious discord, by proscribing all differences in Religious opinion.”Footnote 86 By contrast, allowing religious sects to form and dissolve freely within civil society according to the dictates of individual conscience has yielded “moderation and harmony” among the several sects.Footnote 87
A number of key principles are at work here. The first is the notion of a freedom of association in religious matters based on a natural right more “fundamental” and “inalienable” than any other. Madison appeals to that “primitive State in which [Christianity's] Teachers depended on the voluntary rewards of their flocks,” and individual believers were free to affiliate and disaffiliate at will.Footnote 88 However, religion is not simply one more mode of human association among many. Religion is a species of association more primeval even than our organization into “civil society” or government. Its obligations are “precedent, both in order of time and in degree of obligation, to the claims of Civil Society”:
Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.Footnote 89
The argument here is frustratingly circular, one of Madison's rare admissions of the limits of free association. He takes it as a given that an individual entering into “any subordinate Association” must always concede that this engagement is subject to a more primary, reserved “duty to the General Authority.” Analogously, our engagement in any particular civil society is always contingent on antecedent religious duties to our creator. Therefore, the laws of civil society can never trump or supersede our more primary religious engagements. The problem is that Madison's opening premise already concedes that our engagement in “any subordinate Association” (with the sole exception of a church?) is duly conditioned by a more primary duty to the “General Authority” of “Civil Society.” Perhaps this is Madison's way of escaping the seemingly open-ended defense he offers of arguably destructive factions, parties, Revolutionary societies, etc. First, if and when these organizations actually are seditious—committing a criminal or treasonous act—their members fall under the civil jurisdiction. Presumably even religious sects would fall under this umbrella in their civil actions. Secondly, the assumption that any association is, in theory, subject to the “General Authority” of society does not imply that society should ever call in that reserved duty, especially in cases when the society may judge wrongly. “True it is,” Madison concedes, “that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.”Footnote 90 So while Madison inches away from the principle that something like an absolute and inalienable freedom of association exists, he nonetheless argues in practice that even the most minute abridgment of the freedom of association—or any other right—is a harbinger of tyrannies to come: “The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants.”Footnote 91
The second key principle in Madison's discussion of religious assessments is the idea of equality in the eyes of the law. The proposal for a religious assessment “degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.”Footnote 92 Just as important as the task of protecting individual liberties, the “principle of equality … ought to be the basis of every law.” According to Madison, then, the proposed bill is faulty in two respects: just as the bill “violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable?”Footnote 93
At the margins, Madison's solicitude for absolute freedom of conscience runs up against the governing ideal of equal treatment in the eyes of the law. While Madison argued in his 1785 “Memorial and Remonstrance” that justice precluded laws imposing “peculiar burdens” on certain religious sects, he also rejected there the notion that any religious group ought to be granted “peculiar exemptions.”Footnote 94 In the case of a 1790 bill in the U.S. Congress, however, Madison defends exemptions from military service for Quakers whose religion requires the duty of conscientious objection. Here, though, Madison stops short of offering a truly principled defense of the idea that one group deserves special treatment (“Compulsion being out of the question, we must, therefore, from necessity, exempt them”), arguing instead that Congress should “make a virtue of this necessity, and grant the exemption.”Footnote 95
Madison's discussion of religious association parallels his assumptions about parties and factions. First, there is the notion that conflict and oppression occur only when one group is in the position to impose its power on other minority groups. In the case of faction, we have seen, not only is no artificial support to be given to strengthening parties but the extension of the orbit of national politics is designed to remove the power that democratic institutions necessarily give to majorities over minorities. In the case of religion, however, the very nature of religious disagreement and plurality deprives even the largest religious sects of that power. Little more than denying secular support to religion is needed to guarantee that religions can peacefully coexist. This is easily accomplished “by neither invading the equal rights of any sect, nor suffering any sect to invade those of another.”Footnote 96 Absent the political power to coerce religious affiliation, religions will freely and peacefully coexist.
VII. The Nature and Constitutional Limits of the Freedom of Association
Although it is true that the United States Constitution makes no explicit provision of a constitutional right of free association, as noted above, neither did the American Founders ever go so far as to contemplate, as did the French Revolutionaries, the prohibition of the right of voluntary association.Footnote 97 However, the question remains why freedom of association lurks so uneasily in the background of other enumerated rights. As I have suggested, following Madison, there is the possibility that freedom of association was neglected because of its congruence with freedom of assembly, petition, speech, and conscience. Its existence was simply assumed to follow from or underlie the existence of those enumerated rights. A second and slightly different explanation might be that although the freedom of association is conceptually distinguishable from these other enumerated rights, it was considered either less central or less vulnerable and thus remained among those unenumerated rights whose existence was gestured to by the Ninth Amendment. Madison hints at this possibility in his correspondence with Thomas Jefferson on the case of self-created societies. Or, to frame the point in the reverse fashion, as Madison often did, the fact that the Constitution provided no power for Congress or the Executive to regulate or circumscribe the free association of individuals is much the same thing as saying that such a right is reserved to the people. Freedom of association exists, as Hobbes would say, not so much by nature as within the “silence of the law.” Thirdly, and quite distinctly, the lack of any specific constitutional provision of a right of association could very well be indicative, as Lon Fuller hints, of a kind of elemental suspicion of this right. Members of the Founding generation—perhaps even James Madison—were uncomfortable suggesting that freedom of association enjoyed any kind of fundamental or basic constitutional sanction. To allow this would be inherently destabilizing. We have seen hints of this ambivalence even in the writings of the civil libertarian Madison.
Whatever their motivations, the fact that the Founders seem to have been content to treat freedom of association as a second-order or derivative right leads to another closely related question. Namely, if there is nothing in the Constitution that is conceptually distinguishable as a freedom of association, then out of what enumerated right does the freedom of association most naturally and appropriately spring? At some moments, Madison describes freedom of association as closely linked with freedom of opinion. Common opinions, whether religious or political, motivate individuals to join a party or sect. However, one might consider whether our acceptance of a natural freedom of opinion or conscience necessarily entails a right to associate, as Madison suggests. One can grant the freedom of individuals to believe anything they like (as did thinkers as different as Hobbes and John Stuart Mill) without at the same time acknowledging a correlative right for them to act upon these beliefs or communicate them to others—let alone to come together and cultivate these ideas in common.
To take an extreme example, one enjoys a constitutionally protected right to believe whatever one wants about the United States government (for example, that it is illegitimate and ought to be overthrown), but under certain circumstances either the communication of these ideas to others or the conspiracy of a group of individuals intent on actually achieving them may be prohibited. Thus, the notion that individuals are entitled to hold certain opinions may not provide a reliable or persuasive defense of the freedom of those same individuals to associate with others in the collective pursuit of those ends. Because (to use John Stuart Mill's categories) freedom of association is a “social act,” it is in principle subject to limitations that are illegitimate in the case of purely self-regarding conduct such as holding beliefs or ideas that, absent their communication to others, can have no effects, positive or negative, on other persons.Footnote 98 This distinction seems to be borne out by the constitutional provision in Article III, Section 3 about the gravity of the crime of treason. The specification that charges of treason must be corroborated by two witnesses who have firsthand knowledge of the conspiracy not only works to help secure the rights of the accused against false allegations; it also implicitly acknowledges the fact that treason must be an “overt act” which ordinarily entails collusion or conspiracy with others, including “enemies” of the United States.
Nonetheless, if one understands First Amendment rights of speech and expression to be more positive or substantive than merely the absence of restraint, then one can argue that freedom of association is a necessary condition for the actualization of those guaranteed rights. Can we really be said to enjoy freedom of speech or expression if we are forced to speak alone? The voices of lone individuals are easily drowned out in the din of public life, whereas the voices of organized associations are more often heard. As Stephen Holmes has argued in his discussion of “positive constitutionalism,” freedom of speech or expression may require certain enabling conditions in order to be anything more than an empty formality, and the freedom of association may be an important element of these enabling conditions.Footnote 99
In addition to First Amendment freedoms of speech and conscience, the correlative rights of petition and assembly seem to be even more transparently linked to the right of association. That is to say that in addition to religious freedom and the freedom of speech and expression, with which freedom of association has been most commonly linked in American constitutional law, it arguably makes more sense to think about the freedom of association as existing in the penumbra of the enumerated political rights of petition and assembly. The freedom to petition one's government, after all, is an inherently social or collective enterprise, even if the individuals involved are never physically gathered together in one place. The very act of petition constitutes a symbolic linkage of individuals with one another. Even so, the fact that the right of petition presupposes an act of association—and is itself a species of association—does not necessarily imply a more general right of association. Put more generally, the fact that individuals must be free to come together in order to avail themselves of a certain kind of constitutionally protected right that entails an act of association need not imply that a more generalized right of association holds for a wider variety of contexts or ends.
The same may be true for the right of assembly. While the First Amendment offers a general and abstract right to “peaceably assemble,” this right is by its very nature circumstantially qualified. While few today would countenance the idea that a supposedly constitutional right to free speech could be subject to the side constraint that the speech in question must be peaceful or civil, the freedom of assembly seems to be a different matter altogether, containing within itself an inherent limitation or qualification. What constitutes a “peaceable” instance of assembly—something that can often be determined only in retrospect—leaves considerable latitude for discretion on the part of authorities or local police powers.
Most broadly, Madison's emphasis on the legality principle of freedom of association rests on two key assumptions about the primacy of the rule of law and the equivalency between the actions of individuals and those of groups. The negative or proscriptive version of Madison's thesis is that if the actions of an individual are illegal, then the collective pursuit of this same means or end ought to be illegal as well. The fact that prohibited activities are central to the mission of a group should provide no additional guarantees or protections. This doctrine seems, on the face of it, to run counter to contemporary legal doctrines of centrality and differential burdens, by which certain activities deemed absolutely central to a group's mission or identity ought to be accommodated on grounds that the very existence of a group would be compromised if they were compelled to submit themselves to the same conditions governing the actions of individuals or other groups. By way of contrast, Madison's strict emphasis on legality rests on the assumption that there are no relevant differences between the actions of individuals and those of groups—or, for that matter, among the central missions of different groups. While Madison did contemplate situations where certain religious groups might necessarily be absolved of responsibilities because of their core beliefs, these are the exceptions that validate the more general rule. By and large, the assumption is that the liberties of individuals and groups ought to be roughly coextensive with one another.
All this goes to suggest that groups should be allowed at least as many, if not more, rights than their composite individuals. However, allowing a small and distinct minority (say, the Amish) to do something that individuals or other groups are prohibited from doing (or, conversely, absolving them of the responsibility to do something that everyone else is compelled to do) may not be symmetrical with the notion that groups should always be permitted the same liberties as individuals. It is worth considering whether the positive version of the legality principle is really consistent with the negative version of the thesis considered above. That is, does the claim that groups ought to be bound by the same legal constraints that limit the actions of individuals necessarily imply that groups are entitled to all the same liberties? Just because individuals enjoy certain liberties may not mean that groups should expect the same latitude. It is here, on the flip-side of this principle of the legal commensurability between individuals and groups, that Madison's argument encounters problems.
Groups are nothing more than collectivities formed by like-minded individuals, Madison reasons, and if individuals are allowed certain rights, then it follows that those same rights ought to be afforded to groups. If individuals are allowed freedom of conscience, opinion, or property, for example, then groups must be guaranteed those same rights. The problem with this view is that, contrary to Madison's assumptions, the collective actions of groups may be qualitatively different from those of individuals, both in degree and in kind. This was substantially Hobbes's point. With respect to degree, for example, the freedom of assembly must be limited in light of the sociological and political reality that individuals assembled in large groups may be transformed into angry and violent mobs. Traditionally reserved police powers of localities may, under certain circumstances, (rightly) trump the constitutionally protected right of assembly—a right that is qualified already as “peaceable.” Freedom of speech must be circumscribed at the margins by considerations of the context in which that speech takes place—especially the likely effects of the speech on other individuals and any harms that may result. Likewise, the right to private property and the economic liberties of individuals may differ from those accorded to corporations or other large-scale economic entities because of the disproportionate power commanded by the latter. These may be more than differences of scale or degree. The opinions, speech, and property of individuals have commonly been regarded as “private,” whereas analogous actions by collectivities can be construed as “public” by virtue of their direct, causal effects on other individuals. Not just sociologically or morally, as Madison himself acknowledges, but also legally, something seems to change qualitatively when the wills of individuals are melded together into collectivities.
This is not to say that Madison was necessarily wrong in his conclusions about the rights of “self-created Societies” or other political and religious associations. There is little evidence that the newspaper articles or public declarations in support of the French Revolution and its republican ideals were incongruent with the U.S. Constitution or the American regime, or even that the threat of alien sedition was of the order of magnitude claimed by Adams and others among the pro-British Federalist Party. Even so, it is quite possible that Madison may have been right in practice, but wrong in principle. Madison's assumptions that groups are nothing more than the sum of their individual members—and that groups are therefore entitled to precisely the same (unqualified) rights as individuals—may be faulty if pushed to the extreme. It is this dimension of the peculiar, potentially destabilizing, and qualitatively unique nature of freedom of association that the classical liberal tradition brings so powerfully to our attention.
VIII. Conclusion
James Madison's writings are noteworthy in bringing together two different and mutually antagonistic strands of the classical liberal tradition. On the one hand, Madison draws upon a long tradition of political thought that was wary of the potentially disruptive, seditious, and oppressive dangers of groups. Numerous remarks about the problem of faction and the collective psychology of groups clearly reflect this anti-associational bias. On the other hand, however, Madison stands out against many others of the Founding generation in his unwillingness to abridge the freedom of association in response to those same fears. In this respect, he fully accepts the empirical and sociological premises of the anti-associational tradition without jumping to the same easy normative conclusion, as did George Washington, John Adams, and other Federalists, that freedom of association ought to be curtailed. Constitutional design, Madison confidently predicted, would resolve the worst excesses of faction, sectarianism, and social conflict.
For Madison, as we have seen, although freedom of association remains a derivative or second-order liberty, existing in the penumbra of other more central and enumerable liberal freedoms, it is nonetheless vital that it be protected precisely because of its intimate relationship to first-order liberties of speech, press, religion, and property. Even if Madison stops well short of subsequent thinkers such as Edmund Burke, Alexis de Tocqueville, and Michael Oakeshott, who made strong and affirmative cases for the benefits of the freedom of association and an abundant plurality of political, civil, and religious groups, Madison's writings nonetheless represent an important step in overcoming classical liberalism's anti-associational prejudices.Footnote 100
