Many Covid-19 Restrictions May Be Unconstitutional   -   August 15, 2020

Freedom of Assembly – Even During a Pandemic?

Short answer: Of course.  The Constitution isn’t just for normal times or when convenient; it applies especially during tough times!

The First Amendment to our Constitution doesn’t confer, directly, on Americans a right to gather together for any purpose (or no purpose).  Rather, it directs that no government entity may curtail freedom of assembly – “Congress shall make no law ... abridging the right of the people peaceably to assemble ...”

The operative words are “assemble” and “peaceably.”  The meanings of these terms are as unambiguous today as they were in 1787 – assemble means to gather into a group; peaceable means inclined toward peace, not intimidation, force or violence.  And the right is granted by constraining government entities.

Generally, non-government entities are not so constrained.  Most of America consists of non-government entities – individuals, households, clubs, organizations, businesses, labor unions, charities, churches, theaters, sports organizations ... the list goes on.  Such may limit or control assembly by anyone on their premises. Control may range from open access to limited admission to specifications or restrictions on behavior.  A homeowner or business, for instance, may deny access to a trespassing mob or unruly persons without impinging on any right of assembly.

Government entities include federal, state and local governments and all their components.  The Constitution proscribes such from promulgating laws, rules or regulations that constrain freedom of peaceable assembly.  Public demonstrations, as long as they are peaceable, enjoy this constitutional protection.

Throughout our history, however, government entities have worked to limit peaceable assembly, usually in the name of public safety or national security.  Recent examples include ordering crowds on street corners to disperse, prohibiting ‘live’ church services and ordering parochial and other private schools to close because of corona virus ... all with penalties for non-compliance.

Constitutional rights are not to be abrogated whenever some government functionary decides it’s in our best interests (or theirs).  If we care about freedom of assembly in any situation, we’d better challenge all instances of its violation, even when it seems to be in our best interests ... and especially if it’s not in accord with our personal social or political preferences!

(For more, preview Rise and Decline here.)