University of Pennsylvania Law Review
December, 1990 Page 287
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ARTICLES
REPUBLICAN MOMENTS: THE ROLE OF DIRECT POPULAR POWER IN THE AMERICAN CONSTITUTIONAL ORDER
James Gray Pope *
INTRODUCTION................................................................................. 289
I. POPULAR VS. ELITIST REPUBLICANISM ON DIRECT
POPULAR PARTICIPATION ............................................................. 295
A. Background: The Republican Revival .................................. 296
[Page 288]
B. Direct Popular Participation and the Problem of Size ........ 297
C. The Elitist Solution .............................................................. 299
D. Back to Square One ............................................................. 301
E. A Popular Republican Dilemma ........................................... 302
II. REPUBLICAN MOMENTS ........................................................... 304
A. Ackerman's Constitutional Moments .................................. 304
B. Public Purpose and Creedal Passion .................................. 306
C. Republican Moments ........................................................... 310
D. Popular Republican Pathologies? ....................................... 313
III. REPUBLICAN MOMENTS AS A PARTIAL ANTIDOTE TO
INTEREST GROUP POLITICS .......................................................... 315
A. From Narrow Self-Interest to Public Virtue ........................ 315
B. Breaking the Interest Group Logjam ................................... 318
C. Equalization from Below ...................................................... 320
D. Republican Moments and the Threat of Totalitarianism ..... 322
IV. REPUBLICAN MOMENTS AND THE CONSTITUTION .......... 324
A. Republican Moments in the Political Thought and Practice
of the Founding Generation ..................................................... 325B. Revolutionary Origins of the Right of Assembly .................. 330
C. Peaceable Assembly as a Form of Popular Sovereignty ..... 336
D. Peaceable Assembly During the Confederation Period ...... 337
E. The Constitution and the Reestablishment of
Politics-as-Normal ................................................................... 340F. Republican Moments and the Bill of Rights ......................... 341
V. DIRECT POPULAR POWER AND THE FIRST AMENDMENT...345
A. The First Amendment Value of Direct Popular Power ....... 345
B. The Value of Direct Popular Power Embodied in Current
Doctrine: The Constitutional Right to Boycott ........................ 3471. Background: Claiborne Hardware and SCTLA .......... 347
2. The Right to Boycott as a Popular Republican
Supplement to Representative Politics .............................. 3493. An Expansive Reading of the Right .............................. 352
VI. REPUBLICAN STATUTES ......................................................... 356
A. Statutory Construction ...................................................... 358
B. Administrative Implementation ......................................... 364
CONCLUSION ................................................................................ 366
[Page 289]
Those who profess to favor freedom and yet deprecate agitation, are people who want crops without plowing up the ground, they want rain without thunder and lightning.
¾Frederick Douglass[1]
Even [political turbulence] is productive of good. It prevents the degeneracy of government, and nourishes a general attention to the public affairs. I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.
¾Thomas Jefferson[2]
It is, in fact, at such moments of collective ferment that are born the great ideals upon which civilizations rest. The periods of creation or renewal occur when [people] for various reasons are led into a closer relationship with each other, when reunions and assemblies are most frequent, relationships better maintained and the exchange of ideas most active. . . . Once the critical moment has passed, the social life relaxes, intellectual and emotional intercourse is subdued, and individuals fall back to their ordinary level.
¾Emile Durkheim[3]
INTRODUCTION
The image of thunder storms seems out of place in constitutional discourse. We are accustomed to the more solid metaphors of governmental machinery or the "body politic." If, as John Adams envisaged, government is a "complicated piece of machinery, the nice and exact adjustment of whose springs, wheels, and weights" is poorly understood by the people,[4] then a stormy popular upheaval could only upset the adjustment. Surely no self-respecting physician of the body politic would willingly expose it to the turbulent winds of popular rebellion.
The mechanical and biological metaphors reflect a tendency to view the constitutional order as a stable system, and the mission of [Page 290] constitutional law as promoting the smooth functioning of that system. For the past several decades, this tendency toward systems-thinking has taken the form of liberal or interest group pluralism.
At first, liberal pluralism embodied a happy convergence of descriptive and prescriptive visions. Not only were American politics characterized by interest group bargaining, but that was the best possible state of affairs. As Madison had predicted, a polity divided into numerous competing interest groups would not give rise to a single dominating faction.[5] All groups would be able to press their concerns and make alliances, thereby ensuring that their interests received fair consideration.[6] It followed that the legislative products of this fair process should be broadly construed to achieve their purposes,[7] and that the power of judicial review need only be exercised to correct occasional malfunctions.[8]
In the short decade since John Ely and Jesse Choper "perfect[ed]" this view,[9] interest group bargaining has fallen so low in scholarly esteem that it can now be called a "disease" in the pages of a law journal.[10] Although the system still has its defenders, it is no exaggeration to say that contemporary legal scholarship is "haunted by the idea that statutes are nothing more than deals between contending interest groups."[11] [Page 291]
While the pluralist prescription has thus been seriously undermined, its descriptive vision is more firmly entrenched than ever. The highly influential economic (or "public choice") theory of legislation depicts the polity as a political marketplace dominated by special interest groups.[12] For most citizens, the benefits of political participation do not exceed the costs.[13] Hence, it would be "irrational" for them to engage in political action.[14] With most of the citizenry thus relegated to the sidelines, the field is left open for the few groups that are able, because of advantages like compactness and wealth, to overcome the problem of organizational costs.[15]
For those who are not impressed with the economic diagnosis, there is always the problem of size. The proponents of the "republican revival," for example, are not especially concerned about the purported irrationality of collective action; according to republican theory, political activism can be a source of happiness in itself.[16] Unfortunately, the republican ideal of deliberative democracy was designed for societies the size of city-states. The notion that ordinary citizens can engage in deliberative self-government seems utopian in a polity as large as the United States.[17]
This pessimism is partly a product of systems-thinking. If we set ourselves the task of designing a system that can maintain a steady, high level of nationwide political participation, then the prospects for democracy are indeed bleak. Locked in systems-thinking, we cannot conceive of alternatives to interest group politics that are not themselves capable of continuous, smooth functioning. Hence, it is not surprising that the most ambitious proposals for reform rely not on the uncontrollable remedy of popular power, but on the free market system[18] or the "independent" judiciary.[19] Those who [Page 292] are not so sanguine about markets or courts seem condemned to apologize for suggesting "disturbingly modest weapons with which to confront the seemingly awesome problem posed by special interest groups."[20]
A glance at history suggests that systems-thinking ignores a major part of the American political experience. Our history has from the outset been characterized by periodic outbursts of democratic participation and ideological politics. And if history is any indicator, the legal system's response to these "republican moments"[21] may be far more important than its attitude toward interest group politics. The most important transformations in our political order¾independence, abolition, the rise of economic regulation, the integration of the industrial working class into [Page 293] capitalist democracy, and the extension of formal legal rights to women and minorities¾ were brought on by republican moments.
Not only do republican moments upset systems-thinking, they also violate the axiom that ours is a system of representative government in which, according to Publius and others, the people have no direct role.[22] During republican moments, social movements exert direct popular power on governmental and private institutions. Before proceeding further, it will be useful to specify what is meant by the term "Direct Popular Power" in this essay.
"Direct" means outside the formal structure of representative democracy. An example in pure form would be the replacement of representative institutions by assemblies of "the whole people." Less pure and more common examples include efforts to secure government or private action by mass demonstrations, civil disobedience, boycotts, or other nonelectoral means.
"Popular," as used here, is the opposite of aristocratic or elitist. A form of political participation is popular if it is not limited to elites. Again, the example in pure form would be an assembly of the whole people. And again, less pure but more common examples include demonstrating, withholding patronage, and refusing to obey unjust laws. Here, however, the defining characteristic is not directness, but inclusiveness. A form of participation may be popular but not direct¾as in the case of voting for representatives, or direct but not popular¾as in the case of bribing public officials or threatening to move a factory.
Max Weber's definition of power, which accords with common-sense understandings, is adequate for present purposes. According to Weber, power is "the possibility of imposing one's will upon the behavior of other persons."[23] Power may be, but need not be, exercised through economic or physical coercion. The "power of persuasion" is also, as the phrase indicates, a form of power.[24] [Page 294]
Direct popular power should not be equated with the formal mechanisms of initiative and referendum. The Supreme Court's view that the referendum procedure is a "classic demonstration of 'devotion to democracy"' that "ensures that all the people of a community will have a voice in a decision"[25] may hold for highly politicized electorates, but referendum voting¾unlike more active forms of participation like demonstrating or boycotting¾can also make law without mobilizing popular activity or even attracting much public attention. In the common situation of large and apathetic electorates, referendum outcomes may be less reflective of the popular will than of the amount of campaign spending by competing elites.[26] Thus, although referenda can function as a form of direct popular power, they are by no means the form or even necessarily the most democratic form.
Part I of this Article addresses the problem of popular democracy from the republican perspective and concludes that the problem of size has channeled the new republicans toward elitist solutions. Part II develops the theory of republican moments. Part III suggests that in bringing on republican moments, direct popular power provides a partial corrective not only to the problem of size, but also to the main concerns posed by the critique of interest group pluralism. Part IV finds a constitutional home for the politics of republican moments in the first amendment. Part V applies the theory of republican moments to some first amendment problems, while Part VI discusses its implications for statutory construction and administrative law. [Page 295]
I. POPULAR VS. ELITIST REPUBLICANISM ON DIRECT POPULAR PARTICIPATION
By the early 1980s, interest group pluralism was already under heavy attack in the law reviews.[27] The critics, however, lacked an alternative vision of comparable scope. For aficionados of the free market, this posed no particular difficulty; the obvious solution was to remove decisions from the political realm and entrust them to the market.[28] However, to critics who favored positive government, the lack of an alternative vision presented a serious problem. To fill the gap, Frank Michelman and Cass Sunstein turned to the classical republican tradition of political thought, including its elements of relative equality of wealth, direct citizen participation, and civic virtue.[29] [Page 296]
A. Background: The Republican Revival
There are many possible ways to describe the republican tradition.[30] For present purposes, a relatively simple picture will do. Since this Article has the pragmatic goal of exploring the possibilities for practicing and encouraging citizen self-government, this picture will emphasize the political design features of republicanism rather than its foundations in ethical philosophy. Accordingly, the polar opposite of this version of republicanism is not "liberalism" in the abstract, but interest group pluralism.[31]
In contrast to liberalism's negative freedom, a "freedom to be left alone . . . that implies being alone,"[32] republicanism offers the hope that "freedom might encompass an ability to share a vision of a good life or a good society with others."[33] We are thus empowered to engage in "collective, deliberate, active intervention in our fate, in what would otherwise be the by-product of private decisions."[34] Where liberalism embraces or at least accepts the politics of self-interest, republicanism expects citizens to place the general [Page 297] good ahead of personal gratification.[35] To make possible this "civic virtue," republicanism rejects liberalism's procedural vision of justice, which tolerates wide disparities in wealth, and insists that if citizens are in fact created equal, then they must enjoy a rough measure of actual equality in the distribution of wealth.[36]
The new republicans are not true republicans in the classical sense. While emphasizing the importance of civic virtue and political participation, they reject the ancient view that the political life is the way of life: "Modern men and women know too well the dangers of a unitary politics that lays claim to all the human soul and affects to express man's 'higher nature."'[37] Their claim is the more limited one that our society is out of balance; it privileges autonomy (read isolation) over community, acquisitiveness over civic virtue, and instrumental rationality (exemplified by bureaucracy and market) over moral choice (exemplified by public moral discourse). The new republicans would reverse these priorities, rather than root out all traces of liberalism.[38]
B. Direct Popular Participation and the Problem of Size
Direct citizen participation plays a central role in the republican vision. Without it, the benefits of positive freedom cannot be realized: [Page 298]
As long as politics is equated with government, and government regarded as a means for achieving private purposes and reconciling conflicting private claims in a generally acceptable manner, rightly designed representative institutions may serve its purposes very well. But if its real function is to direct our shared, public life, and its real value lies in the opportunity to share in power over and responsibility for what we jointly, as a society, are doing, then no one else can do my politics 'for' me, and representation can mean only the exclusion of most people from its benefits most of the time.[39]
Only through participation can individuals overcome selfish parochialism to become virtuous citizens. In the course of political deliberation, we are "forced to acknowledge the power of others and appeal to their standards," to "find or create a common language of purposes and aspirations," and thus "not merely to clothe our private outlook in public disguise, but to become aware ourselves of its public meaning."[40]
In a darker vein, only an active citizenry can defend itself against corruption and tyranny. Rousseau warned that citizens who fail to make public service their chief business will "end by having soldiers to enslave their country and representatives to sell it."[41] Benjamin Barber has updated Rousseau's warning: "Only an active politics and a democratic citizenry can prevent the transformation of relativism into nihilism or of philosophical skepticism into political impotence (the Weimar Republic comes to mind)."[42]
Classical republicanism assumed a polity small enough for the entire citizenry to engage in face-to-face political discussion.[43] Obviously, the United States is too large for a general assembly of the whole people. The response of the new republicans to this difficulty, which has haunted American republicans from the anti-federalists on, will determine republicanism's relevance and attractiveness as an alternative perspective on the Constitution.
If face-to-face debate is impossible on the national level, then where can republican dialogue take place? In their initial efforts, [Page 299] Michelman and Sunstein found a home for republicanism in the manageably sized congressional and judicial elites, most importantly the Justices of the Supreme Court.[44] It will be useful to take a brief journey through Professor Michelman's two principal contributions, which graphically reveal the relationship between republican elitism and the problem of size.
C. The Elitist Solution
In his Harvard Foreword on republicanism, Professor Michelman straightforwardly confronts both the problem of size and the problem of elitism. Direct citizen self-government might have been possible in eighteenth century Geneva, but "for citizens of the United States, national politics are not imaginably the arena of self-government in its positive, freedom-giving sense."[45] With some trepidation, Michelman finds a place where it does seem that republican values can be realized: the ultimately small (nine strong) and homogeneous (members of the legal elite) society of the Supreme Court.[46] The Court takes on as one of its "ascribed functions the modeling of active self-government that citizens find practically beyond reach. Unable as a nation to practice our own self-government (in the full, positive sense), we¾or at any rate we of 'the reasoning class'¾can at least identify with the judiciary's as we idealistically construct it."[47]
The difficulty with this approach is that self-government by any given group (or class) presents a polycentric problem; the ability of other groups to engage in self-government is inevitably affected. Michelman is not insensitive to this difficulty. He acknowledges that his approach may be "a pathology of court-fetishism,"[48] but offers an "optimistic" defense. Self-government is not, he points out, a zero-sum game.[49] Freedom for one person or group does not necessarily entail less freedom for another if freedom is conceived of as "socially situated self-direction."[50] So far so good; indeed, the self-governing activity of one group might well encour- [Page 300] age similar activity by others¾both by example and by stimulating intergroup dialogue.
The Supreme Court is not, however, just any group; it possesses tremendous power to frustrate self-governing activity by others, most notably by overturning the outcomes of the legislative process. Here, Michelman points out¾uncontroversially from a republican point of view¾that we, the people, are no more present in Congress than we are in the Court, and "government fetishism is no better than court-fetishism."[51] Any particular exercise of judicial review may augment or constrict our freedom: "As usual, it all depends."[52]
To establish that judicial review is not inherently anti-freedom or anti-democratic is not, however, to establish that it should go so far as to provide a vicarious substitute for direct democracy. Numerous other roles are possible, for example the familiar ones of enforcing conventional morality[53] or tradition,[54] or the one proposed here: the republican process role of opening possibilities for democratic discourse.[55]
Michelman's proposal rests ultimately on the claim that the Court can supply an acceptable representation of the kind of direct self-government that we would practice were our polity small and homogeneous enough to make it possible. If "we" is read to mean We the People, however, then the claim collapses. To suggest that judges, who are typically white, male, and rich,[56] can virtually represent the rest of us is to forget the legacy of legal realism, something that I doubt Michelman intends.
The possibility that the Court could represent self-government among the "reasoning class" may be, depending upon the definition of the class, more plausible. But the problem of definition requires a straightforward trade-off of democracy for plausibility. If the reasoning class includes only academically trained intellectuals, for example, then the notion of Supreme Court representation is [Page 301] plausible, but profoundly undemocratic. If, on the other hand, the reasoning class extends to all members of society who are engaged in serious moral choice and dialogue¾including, for example, religious fundamentalists, feminists, union militants, and black activists¾then Supreme Court representation would be more fictional than virtual.
In the end, despite his aversion to elitism, Michelman chose an elitist solution. One is left with the question of why, given that Michelman drew the term "reasoning class" from John Ely's book, did he not also address the problem to which Ely was referring: "The danger that upper-middle-class judges and commentators will find upper-middle-class values fundamental."[57]
D. Back to Square One
In his more recent contribution, Law's Republic, Michelman moves decisively away from the elitist implications of the Foreword but only at the cost of abandoning his solution to the size dilemma. In Law's Republic, the primary impetus for transformative republican lawmaking comes not from empowered elites at the center of society, but from hitherto subjugated groups at the margins.[58] For example, the "emergent social presence and self-emancipatory activity of Black Americans" played "the primary and crucial role" in shaping the Warren Court's new approach toward the equal protection clause.[59] Thus, the task for legal thinkers is to bring "the hitherto absent voices of emergently self-conscious social groups" to "legal-doctrinal presence."[60]
How to do this is, of course, precisely the question made difficult by the problem of size. One way to bring in marginal voices is simply to have the Supreme Court listen to them, an approach thoughtfully articulated by Professor Martha Minow without any particular reliance on republican theory.[61] Michelman adds a second, process-facilitating suggestion: the Court can seek to preserve the conditions necessary to support self-governing activity by the disempowered. Thus, for example, the dissenters' position in Bowers v. Hardwick[62] can be defended with a republican [Page 302] process argument that, " j ust as property rights¾rights of having and holding material resources¾become, in a republican perspective, a matter of constitutive political concern as underpinning the independence and authenticity of the citizen's contribution to the collective determinations of public life, so is it with the privacies of personal refuge and intimacy."[63] In this process-enhancing role, the Court facilitates rather than displaces or represents popularparticipation.[64]
Unfortunately, this insight yields little in the way of prescription that Michelman had not already taught us long before his journey into Pocock, Pitkin, and Harrington, when he argued that the Constitution compels government to provide a "social minimum" of resources to every person so that he or she can function as a full participant in the political life of the community.[65] Moreover, Law's Republic leaves us back at square one on the problem of size.
E. A Popular Republican Dilemma
With the publication of the Yale Symposium on the Civic Republican Tradition, the development of a republican alternative advanced to a new stage. Symposium participants, ranging from Paul Brest to Richard Epstein, pointed out the elitism in the Michelman and Sunstein articles.[66] Sunstein and¾as we have [Page 303] seen¾Michelman both moved beyond their earlier court-centered suggestions, finding traces of republican self-government in, for example, local communities, religious congregations, unions, and other intermediate groups.[67] This new focus on direct participation by ordinary citizens moves the republican revival away from the elitist tradition of republican thought, exemplified by The Federalist, and toward the popular republican tradition, exemplified by Rousseau and Thomas Jefferson.[68]
In rejecting elitism, however, the new republicans have been thrown back on the horns of the size dilemma. While small groups undoubtedly provide a manageably sized forum for direct participation, the problem of self-government at the national level remains. How are disempowered groups to engage in nationwide dialogue and lawmaking?
One group of scholars, tagged by one of its number as "normative pluralists," has suggested an alternative: forget nationwide self-government and rely on self-regulating interactions among autonomous self-governing groups.[69] These thinkers have made an undeniable contribution in disclosing and explaining the importance of group self-government to strong democracy.[70] To the extent that their emphasis on autonomous groups excludes nationwideself-government, however, they fall prey to the centrifugal vices of [Page 304] anarchism.[71] We cannot so easily escape the dilemma of strong democracy at the national level.
II. REPUBLICAN MOMENTS
The search for alternatives to interest group politics should begin not in the realm of theory but in the political life of ordinary citizens.[72] In his Storrs Lectures, Bruce Ackerman has provided an excellent starting point.[73]
A. Ackerman's Constitutional Moments
Professor Ackerman is painfully aware of the difficulties facing citizens who seek to practice republican politics. An appeal to the public interest is likely to be met "with bewilderment, or worse, by friends and neighbors who fail to look beyond their parochial interests."[74] Most of the citizenry most of the time is simply too apathetic, ignorant of public issues, and selfish to engage in political activity.[75] A serious attempt to eliminate these obstacles would require a system of "coercive democracy," which would force citizens to pay attention, for example, by compelling them to spend an hour or two each day discussing public issues. Since the coercive cure is worse than the liberal pluralist disease, the normal operation of politics must be conceded to interest group representation¾albeit bounded by civic-minded judicial review.[76]
But Ackerman extends his search for citizen self-government beyond the bounds of representative government. There, he finds a "higher lawmaking track," textually rooted in article V's provision for constitutional conventions, theoretically elaborated in The Federalist, and historically manifested in three constitutional moments: (1) the founding of the republic; (2) the events culminat-[Page 305] ing in the adoption and acceptance of the Civil War amendments; and (3) the constitutional vindication of the New Deal.[77]
In order to succeed on the higher track, a political movement must refuse to be bought off by short-term selfish gains obtainable on the lower track.[78] This requires a high level of commitment from the movement's adherents. For these citizens, the normal priority of private over public life is reversed; they become private citizens instead of private citizens. If they persevere, and if they "strike a resonant chord" among the people, "their strong appeals to the public good are no longer treated as if they were the ravings of fringe elements."[79] At such moments, "millions of Americans do manage, despite the countless diversions of liberal democratic society, to engage in an act of self-government with a seriousness that compares to the most outstanding constitutional achievements of the past."[80]
Inspiring talk. But at first glance, it seems that Professor Ackerman has come to praise republicanism only to bury it. His theory celebrates a system that has produced only three constitutional moments in two centuries, and two of those involved full-scale warfare. Ackerman's three moments are not, however, intended as a comprehensive list of popular republican periods. He set out to develop a theory of judicial review, not of direct popular power. In pursuit of that agenda, he sought only periods of citizen involvement so intense, widespread, and coherent that they could plausibly be said to provide the Court with a mandate to overturn legislative enactments.[81] This Article, which seeks to explore the role of direct popular power in general, requires a broader search. [Page 306]
B. Public Purpose and Creedal Passion
Historians and political scientists have long recognized and pondered over the fact that American politics seems to alternate between periods characterized by public action, idealism, and reform and periods of private interest, materialism, and retrenchment.[82] Each period helps to generate its own demise. A prolonged private period spawns orgies of corruption and extremes of wealth and poverty that, sooner or later, ignite passionate movements for reform. Public periods inevitably burn themselves out; most people eventually become exhausted within politics and return to family and private pursuits.[83]
Seven periods are often mentioned as public periods: the Revolutionary era, the Jeffersonian upsurge, the Jacksonian period, the Civil War and Reconstruction, the Populist era, the New Deal, and the 1960s.[84] Most produced what V.O. Key labelled "Critical Elections"¾elections that reflect basic shifts in the nationwide alignment of political forces.[85]
Samuel P. Huntington has described the two modes of politics in detail. He contrasts interest group pluralism, which "accounts for most of American politics most of the time," with a distinct, participatory mode¾"creedal politics"¾which supplements and at times supplants interest group bargaining.[86] In creedal politics, the republican ideals of direct participation and socially-situated moral discourse prevail over their liberal counterparts. Creedal politics tends to be "idealistic rather than materialistic, reform-minded rather than status-quo oriented, and formulated in terms of [Page 307] right and wrong rather than more or less."[87] Practitioners of creedal politics appeal to deeply held American values, eschewing the politics of self-interest. In contrast to liberal pluralism's emphasis on party, electoral, and interest group politics, creedal politics are characterized by protest, exposure, and reform propelled by "passionate drives to expose evil, to protest evil, and to reform evil."[88]
Huntington identifies four "creedal passion periods" when this form of politics predominated: (1) the Revolutionary era of the 1760s and 1770s; (2) the Jacksonian age of the 1820s and 1830s; (3) the Populist-Progressive decades of the 1890s and 1900s; and (4) the period of social upheaval sparked by the civil rights, anti-war, and women's rights movements in the 1960s and early 1970s.[89] During such periods, political ideas and ideals are taken seriously throughout society.[90] Political participation is widespread and intense. Public-spirited voluntary associations, "the peculiar American contribution to achieving the common good," displace political parties and representative government as the preferred organizational form for political action.[91] Although creedal movements invariably fall far short of their goals, they have forced major structural reforms, for example the introduction of universal white male suffrage during the Jacksonian era, the first regulatory commissions and antitrust laws during the Populist-Progressive era, and the dismantling of legal segregation in the South during the 1960s.[92]
Huntington claims that his construct captures the main historical periods during which the American people practiced an alternative form of politics to interest group pluralism. His pursuit of a narrower agenda has, however, led him to omit highly significant periods of direct citizen participation. Of particular importance is his omission of the New Deal.[93] [Page 308]
Huntington excludes the New Deal because, in his view, it focused on economic rather than political problems, substituted pragmatism for the "moralism and Puritanism" characteristic of other creedal periods, expanded rather than cleansed or democratized government, and mobilized social movements along horizontal class lines rather than the "more vertical cleavage characteristic of creedal passion periods."[94]
None of these distinctions are germane to our search for experiences of citizen self-government. Huntington does not, and could not, deny that the New Deal embodied all of the features of his creedal periods that are important here: widespread and intense political participation, political discourse centering on principles rather than narrow self-interest, serious consideration of far-reaching change, and the overshadowing of representative government by voluntary associations and social protest.
Indeed, a strong case can be made that Huntington was wrong to exclude the New Deal even on his own terms. His characterization of the New Deal as economic, pragmatic, and lacking in purifying or democratizing impulses fails to take account of the period's climactic conflict. By the time of the New Deal, the labor movement and its allies had been fighting for decades to implement economic reform, scoring numerous legislative victories. Most of these successes were nullified by courts.[95] The New Deal period saw the elimination of the unelected judiciary as a barrier to popular legislation, the transfer of enforcement power from what were perceived to be anti-democratic judges to public-minded administrators,[96] and the extension of democratic government to the market realm.
Of course, in the depths of the Great Depression, the main concern of policymakers was economic recovery. But the public debate was heavily influenced by popular movements voicing the language of equality, justice, and fundamental rights. In the period leading up to the New Deal, "[e]veryone from Woodrow Wilson to Big Bill Haywood acknowledged that the 'labor question' was not merely the supreme economic question but the constitutive moral, political, and social dilemma of the new industrial order."[97] [Page 309]
Consider the Wagner Act, a centerpiece of the New Deal order. While the lawyers who drafted the law saw it as a Keynesian recovery measure,[98] its political supporters also viewed it as a democratic reform, the replacement of industrial feudalism and slavery by freedom of self-organization and God-given rights.[99] The law was enacted partly in response to a massive wave of protest marches, strikes, job actions, and other protests.[100] In 1937, Fortune Magazine provided what may be the best brief summary of the relationship between economic pressures, popular upsurge, and the Wagner Act:
A labor movement fighting merely for better wages might or might not be a "movement" in the profound sense: it might be a kind of guerrilla warfare, indicating unrest but without historical direction. On the other hand, when men strike for union recognition they are striking for collective bargaining . . . . The fact that half of the 1936 strikes were fought for [this] principle, with the trend continuing into the stormy spring and summer of 1937, is of such significance that those who follow labor closely are inclined to doubt the comfortable theory . . . to the effect that the current wave of strikes is just a normal post-depression phenomenon. . . . Washington has strengthened labor's position, not just [Page 310] for the hell of it, but in response to forces that the depression stimulated and revitalized.[101]
Huntington's final distinction is puzzling. He contrasts the class-based cleavages of the New Deal with the "vertical" (i.e., cross-class) cleavages of creedal passion periods.[102] It turns out, however, that the creedal movements were dominated by "middle-class" reformers.[103] As with most successful reform movements, these leaders found support outside their own class. It is hard to see why this made Huntington's middle-class dominated creedal movements qualitatively more "vertical" than the New Deal's working-class movements, which found numerous allies among the middle classes and, according to some, among the upper classes.[104] It seems that Huntington either rejects the possibility of working class people engaging in moral politics, or has chosen, for some reason, to exclude such movements from his construct.
In short, Huntington's creedal construct is too narrow for present purposes. We are concerned not with the "Puritan" content of reform demands or with middle class leadership, but with the popular republican character of political life among all moral viewpoints and social classes.[105] Hence, instead of "public periods" or "creedal passion periods," the term "republican moments" best identifies the phenomenon under study here.
C. Republican Moments
Republican moments are not, of course, republican in the strict sense. At no time did direct citizen self-government entirely displace the interest group process. Nor was the classical ideal of the deliberative republic implemented in any recognizable form. These periods were, however, republican in the same sense that the republican revival is republican.[106] The everyday liberal priorities [Page 311] of autonomy over community, acquisitiveness over civic virtue, and instrumental rationality over moral choice were reversed, albeit only partially and temporarily.
Republican moments have five defining features. The first three track the republican-liberal distinction: (1) large numbers of Americans engage in serious political discourse; (2) their arguments are couched primarily in moral rather than pecuniary terms and appeal to the common good rather than private interest; and (3) the subjects of debate include fundamental aspects of the social, political, or economic order.
The last two track the distinction between direct popular power and representative politics-as-normal: (4) representative politics are overshadowed by extra-institutional forms of citizen participation such as popular assemblies, militant protest, and civil disobedience; and (5) social movements and voluntary associations displace interest groups and political parties as the leading forms of political organization.[107] [Page 312]
The construct of republican moments is, of course, an ideal type¾a distillation of characteristics that are rarely, if ever, observable in pure form in social practice. Three periods approach the ideal type very closely: the Revolutionary era, the New Deal, and the 1960s.[108] Four others are close enough to warrant the label: the Jeffersonian upsurge, the Age of Jackson, the period of Civil War and Reconstruction, and the Populist era.[109]
Thus far, I have focused exclusively on nationwide, multi-issue republican moments. Even when national political life is dominated by interest group bargaining, however, there is a constant simmering of popular agitation. Out of this background of low-level activity, democratic upsurges may bubble up and displace politics-as-usual at the state or local level as happened, for example, in North Dakota during the Non-Partisan League's reform campaigns of 1919-1920 or in Rhode Island during the Dorr Rebellion. Alternatively, the entire nation may experience popular republican politics on a single issue, as in the struggle for women's suffrage, and the current debate over abortion. Full-scale republican moments typically emerge out of such localized or single-issue mobilizations.[110] [Page 313]
The resulting picture shows the American political order not as a delicately balanced machine or a harmonious body politic, but as a competition between rival modes of politics, with republican moments punctuating the operation of politics-as-normal at all levels.
D. Popular Republican Pathologies?
In response to earlier drafts of this Article, many readers objected that I must have searched for instances of popular participation through rose-colored glasses. Queried one: "I remain uncertain about why the KKK, the Red Scare, McCarthyism, Reaganism, etc. are not also 'moments'¾and why exclude those mobs who tarred and feathered Wobblies, lynched blacks, smashed those opposed to World War I, and are blockading abortion clinics today?"[111]
One of these examples¾Reaganism¾bears no relation to a republican moment. The so-called "Reagan revolution" thrived on political apathy. The principal form of citizen involvement was voting, and even the rate of voter participation was down from the 1960s and 1970s, especially among groups that are relatively disempowered in interest group bargaining.[112] None of the defining characteristics of a republican moment was present.
The remaining examples all exhibit at least some features of republican moments. Most, however, depart decisively from the model. Republican moments are defined by widespread participation in serious political discourse. Many of the questioner's examples are characterized by the systematic suppression of discourse. Thus, for example, the Reconstruction-era Klan rode to expel Republican leaders and prevent African-Americans from voting, goals which were achieved with spectacular success in many areas of the South.[113] The Red Scare of 1919-1920 involved an attempt to silence radicals and the militant wing of the labor [Page 314] movement, both by direct violence and by government repression.[114] McCarthyism was a similar, albeit less spectacular, phenomenon.
Repression and violence cannot, of course, be entirely avoided when political passions run high, but these periods are distinguished by the extent to which repression and intimidation dominated the political atmosphere. Participatory politics were displaced by a politics of fear.
Lynch-mobs, anti-Wobblie vigilantes, and patriotic enforcers are specific phenomena, not "moments." Although such groups may be active during republican moments, they are suppressing rather than practicing popular republican politics.
What about the "Pro-life" movement? There is an obvious factual distinction along right versus left political lines.[115] This distinction is, however, radically inconsistent with the core notion of republican moments. The focus here is on the democratic quality of the political process, not its substantive outcomes.[116] The current public debate over abortion meets all the criteria of a [Page 315] republican moment. Militant anti-abortion protesters have forced the issue to the top of the legislative agenda in many states. Prochoice activists have responded with mass demonstrations and lobbying campaigns. Politicians find themselves under intense public scrutiny on the issue. Whatever the ultimate outcome, large numbers of Americans have been drawn into a passionate, nationwide debate over fundamental moral principles.
III. REPUBLICAN MOMENTS AS A PARTIAL ANTIDOTE TO INTEREST GROUP POLITICS
We have seen that social movements use direct power to bring on republican moments, and that republican moments tilt the polity toward the republican values of participation, virtue, and positive freedom. But is a little republicanism necessarily a good thing? After all, it was only a few decades ago that social movements were widely regarded as divisive nuisances, and their leaders as "agitators, rabble-rousers, or maladjusted personalities."[117]
A thorough empirical analysis of the consequences of republican moments is beyond the scope of this Article, but a canvass of the literature supports a strong hypothesis that republican moments provide correctives, albeit temporary and partial, to the main flaws of interest group pluralism. Although these flaws have been recognized and critiqued from a wide range of theoretical perspectives, I have made a special effort to address the public choice versions because of their enormous influence during the past decade.
A. From Narrow Self-Interest to Public Virtue
According to public choice theory, it would be lunacy for citizens to prefer public participation over private pursuits. Even voting, the least demanding form of political participation, may be irrational. Since the incremental benefit gained by a voter is likely to be less than the cost of obtaining the information necessary to [Page 316] make an intelligent choice, the typical citizen is "rationally ignorant" about public affairs.[118] She will make the effort to overcome ignorance only if offered selective incentives to do so. This theory, however, is accurate only when isolated individuals stand face-to-face with the institutions of representative politics-as-usual.
Direct popular power alters the equation in two ways. First, it gives ordinary citizens the experience of engaging in effective collective action. In the early stages of a social movement, commitment and solidarity are forged in local struggles for limited objectives. For example, colonial mobs forced royal tax officials to resign; abolitionists helped slaves escape to Canada; industrial workers struck for union recognition; and African-Americans boycotted until white employers broke the color barrier. In local settings, individuals learn to see themselves not as the anonymous, isolated statistics of the public choice model, but as important members of an effective and empowered group. They may thus become what a recent empirical study described as "calculating Kantians" who are "willing to do their duty if enough others are doing the same."[119]
As a social movement gains momentum, its adherents may cease to see political action as a cost. Where the contrast between individual despair and collective empowerment is especially sharp, as during the Montgomery bus boycott of 1955-56, individuals embrace collective action as a "liberating passion rather than a distasteful chore."[120] The free-rider problem dissolves because the experience of self-government itself becomes a source of personal satisfaction. Thus, at some point, "the benefit of collective action for an individual is not the difference between the hoped-for [Page 317] result and the effort furnished by him or her, but the sum of these two magnitudes!"[121]
Second, the drama and disruption of direct popular power mobilize the citizenry into political discourse. When individuals must sit in a traffic jam caused by protesters, endure the glare of picketers to shop at their favorite store, do without the services of workers on strike, or see the calm of their neighborhoods disturbed by residential picketers, it becomes more difficult for them to remain focused on private pursuits. People who are not directly affected see the protests on television or read about them in newspapers. If the turmoil continues, citizens begin to pay more attention.[122] Although the initial reaction is usually anger against the protesters, attention eventually shifts to the underlying issues.[123]
Opponents of direct popular power contend that it enables small elites to force their views upon an apathetic populace.[124] They point to the undeniable fact that only a small fraction of the population actually participates in protest. But direct popular power rarely serves as an effective weapon for imposing one group's views on another.[125] Because it operates out in the open, it usually contributes not only to the mobilization of supporters, but also of opponents. Indeed, in the early stages of a movement, protest often provokes a backlash from citizens who would prefer to remain immersed in private pursuits.
In short, direct popular power is more useful in raising the pitch of political struggle than in determining its outcome. Once distracted from private pursuits, the citizenry may selectively embrace the protesters' demands, as occurred with the labor [Page 318] movement of the 1930s and the civil rights and anti-war movements of the 1960s, or turn against them, as appears to be happening in many states today in the struggle over abortion. The ultimate outcome, whatever it is, reflects broader and more intense public participation than interest group politics-as-usual.
B. Breaking the Interest Group Logjam
One of the most powerful critiques of interest group politics, advanced from both the left and the right, points out the extreme difficulty of getting anything done or¾in republican terms¾of making conscious decisions about the basic direction of the country. It is commonly said that America has become "ungovernable."[126] Policymakers, unwilling to consider or implement basic change, "minimax" their way toward incremental reform.[127] Interest groups form strong relationships with government agencies and tenaciously resist any attempt to alter the balance of forces.[128] It is especially difficult to change the "agenda of controversy, the list of questions which are recognized by the active participants as legitimate subjects of attention and concern."[129] Logrolling, it seems, results in logjams.
While political life degenerates into stalemate, civil society continues to change. Gradually, the state grows apart from society. Government ceases to reflect either the needs or the preferences of the people.[130] As depicted in Figure 1, republican moments are [Page 319] a sort of "surrogate for revolution" that reconnects the state to civil society.[131] Using forms of direct popular power like mass demonstrations, strikes, and boycotts, social movements can force fundamental change onto the public agenda.[132] Republican moments, like the "critical elections" that tend to accompany them, respond to the "incapacity of 'politics as usual' to integrate, much less aggregate, emergent political demand."[133] The major milestones on the road to the current political order¾independence, abolition, the rise of economic regulation, the integration of the industrial proletariat into capitalist democracy, and the extension of formal legal and political rights to racial minorities¾were all products of republican moments.
[Page 320]
C. Equalization from Below
It is widely agreed that the normal operation of interest group pluralism systematically favors some groups over others. Not only does this violate the principle of political equality, but it also leads to a malfunction in the political marketplace. If all constituencies were equally represented, then legislators would be pressured to raise the total wealth of society. As long as the interest groups active on an issue represent substantially less than the entire population, they can agree on a solution that will benefit themselves by transferring wealth from the underrepresented constituencies.[135] Typically, this means enriching small, formally organized groups at the expense of larger, loosely organized groups.[136] In economic terms, the costs of the interest group deal "spill over" onto the underrepresented groups.[137] While corporations have been rightly identified as the big winners in the process,[138] other "entrenched oligarchies" such as labor unions and farm interests can exercise disproportionate influence under certain conditions.[139]
During republican moments, groups that are disadvantaged in interest-group bargaining develop unorthodox forms of direct popular power. The popular assemblies and boycott movements of the Revolutionary era helped to compensate for malfunctions in the representative process.[140] Reformers circumvented politics-as-normal during the Jacksonian era by calling state constitutional conventions.[141] Conservative women invaded the "gendered space" of taverns and saloons, while their radical counterparts parlayed female control of household consumption into collective power by boycotting such targets as British importers, slave [Page 321] industries, and discriminatory employers.[142] Industrial workers occupied factories and engaged in general strikes; African-Americans boycotted, sat in, and marched; and the list goes on.
Even groups that appear to be politically effective may in fact be poorly represented in politics-as-normal. The notion that leaders and paid lobbyists accurately represent their constituents' interests depends upon an idealized conception of group organization.[143] Leaders and paid staff develop distinct interests which do not necessarily coincide with those of the members.[144] Internal democracy¾often the main channel for expressing views to leadership¾rarely functions well at the national level.[145] Sub-groups complete within large interest groups, replicating pluralist malfunctions on a smaller scale.[146] As a result, the policies pursued by group leaders and staffers often diverge widely from the interests of many or even most of the group's members.[147]
During republican moments, however, rank-and-file members are prone to rise up and reshape their organizations. In the 1930s, for example, a mass movement of industrial workers arose within the American Federation of Labor, which had been systematically ignoring their concerns, and drastically altered the balance of power between the craft and industrial unions and between industrial workers and their employers.[148] Similarly, in 1959, the NAACP [Page 322] was forced by the bold sit-in tactics of young activists to endorse a campaign strategy that was not of its own choosing.[149] During such periods of upheaval, established interest group leaders must either embrace the rank-and-file initiative, as did the NAACP, or risk severe damage to their leadership positions, as occurred when the CIO split from the intransigent AFL. In either case, the constituency ends up with more responsive representatives.
D. Republican Moments and the Threat of Totalitarianism
In response to earlier versions of this Article, several readers argued that in celebrating direct popular power there is a risk of strengthening totalitarian movements. Although interest group pluralism's affirmative claims to fairness and efficiency may have been debunked, what about its defensive function as a bulwark against totalitarian dictatorship? This argument brings us full circle, back to the early days of modern liberal pluralism.
Interest-group pluralism originated as a defensive reaction to the totalitarian threat of the mid-twentieth century. To the liberal intellectuals of that period, the central problem of political science was preserving formal democratic institutions against the brutal menaces of Nazism and Stalinism.[150] Many located the social basis of totalitarianism in the lower classes, and its political expression in ideological politics.[151]
Their solution embodied the two main principles of Madisonian democracy. First, the people¾especially the lower classes¾should be discouraged from uniting in an ideological movement.[152] As long as politics consisted of narrowly self-interested deals, no broad-based ideological movement would emerge. Second, effective power should be concentrated in elites that could--at least relatively speaking¾rise above popular passions and prejudices.
From this perspective, republican moments are nightmares. Social movements mobilize broad sectors of the population into [Page 323] passionate, ideological action. Interest group leaders are shoved aside. Representative institutions are bypassed or pressured with extra-institutional forms of power.
As the pre-eminent pluralist Robert Dahl has observed, however, defensive pluralism makes a "sort of fetish" out of stability and consensus, ignoring the "astonishing" amount of conflict and change that democracies have absorbed.[153] The democratic rights that we celebrate today were all won by unruly and ideological movements. Defensive pluralists would have us believe that these origins are irrelevant to preserving democracy. As Huntington has shown, however, democratic ideals cannot survive without periodic rejuvenation by popular movements¾a belief shared, as we shall see, by many Americans of the founding generation. Totalitarian movements find their most fertile soil in the political anomie that results from stalemated politics and popular disempowerment.
The democratic impact of republican moments should not be overstated. Historians have argued that many of the Progressive Era and New Deal reforms reflected efforts by corporate elites to finetune the market and head off radical change.[154] Moreover, during the 1960s¾the only republican moment since the rise of the administrative state¾the civil rights movement was co-opted into many incrementalist projects.[155] But the failure of republican moments to displace interest group politics completely should not blind us to the fact that they encompass the most vigorous exercises of democracy yet undertaken by the American people. As such, they provide the natural starting point for efforts to involve the citizenry in strenthening democracy. [Page 324]
IV. REPUBLICAN MOMENTS AND THE CONSTITUTION
The Constitution and Bill of Rights were themselves products of a republican moment, a time when "every order and degree among the people" had begun "to dispute on politics and positively to determine upon our liberties."[156] Given this genesis, it would be surprising if these founding documents did not express some position on the status of popular republican politics in our constitutional order.
In the traditional view, the Constitution was a reaction to the "democratic excesses" of the Confederation period¾an attempt, in effect, to terminate the republican moment and reestablish politics-as-normal within a framework of representativegovernment.[157] This view is accurate as far as it goes.[158] Any attempt to find a constitutional home for popular republican politics must confront the fact that the body of the Constitution was intended to repudiate direct democracy and to establish representative government.
But liberal pluralist theory has attempted to go further, interpreting subsequent amendments in light of the traditional view. The first amendment is said to be primarily concerned with activities that are integral to representative politics-as-normal, for example, speech that seeks to influence elections or comment upon public officials.[159] John Ely and Jesse Choper built this view into a comprehensive theory, arguing that the entire Constitution, including the Bill of Rights and the Reconstruction Amendments, should be interpreted so as to facilitate the functioning of representative government.[160]
At first glance, the liberal pluralist view has the advantage of structural consistency. Given that the body of the Constitution clearly sets up the machinery for representative government, why not treat the relatively vague commands of the first amendment as if they were accessories? [Page 325]
The history of republican moments suggests another possibility. From a functional point of view, the constitutional order might best be served not by reducing the first amendment to a guarantee of politics-as-normal, but by permitting and even encouraging the practice of popular republican politics outside the framework of representative government. In this view, the first amendment would encompass direct exercise of group power, thus providing a popular supplement to representative government.[161]
The following sections assess the textual and historical support for the possibility of a popular republican supplement, focusing on the right of the people peaceably to assemble. Although the history presented here is in the service of the broader project on republican moments, I hope that it will not do too much violence to the historian's concern with "[n]uance and change."[162] The account takes as its starting point the centrality of the relation between the legal theory and political practice of the Revolutionary and Confederation periods.[163]
A. Republican Moments in the Political Thought and Practice of the Founding Generation
Most of the American founders and their English Radical Whig mentors believed strongly in the need for popular action outside regularly established government. James Burgh advised that in "planning a government by representation, the people ought to provide against their own annihilation" by establishing "a regular and constitutional method of acting by and from themselves, without, [Page 326] or even in opposition to their representatives, if necessary."[164] In Cato's Letters, John Trenchard asserted the people's right of petition (which, in his view, included not only the right to be heard, but also to obtain relief), and argued that the distinctive feature of free countries "lies principally here, that . . . their Magistrates must consult the Voice and Interest of the People."[165] Joseph Priestly observed that the "sense of the people" though "no nominal part of the constitution . . . and though it is only expressed by talking, writing, and petitioning," nevertheless operates as a "real check" on government because "tumults and insurrections so often arise when the voice of the people is loud, that the most arbitrary governments dread the effects of them."[166]
Since rulers inevitably tended toward corruption and tyranny, the people had the right and the duty to defend their liberties¾by armed force if necessary.[167] Rebellion and tumult served notice that, as Samuel Adams put it, the "wheels of good government" were clogged.[168] Even cautious Whigs like John Adams, not to mention Alexander Hamilton and James Madison, could endorse "Popular Commotions" when "Fundamentals are invaded" by government.[169] Thus, insurrections could be interpreted as "Symp toms [Page 327] of a strong and healthy Constitution."[170]
Thomas Jefferson developed this theme in a way that closely presaged the subsequent experience with republican moments. Political turbulence was "as necessary in the political world as storms in the physical."[171] It helped to sustain a politically aware citizenry by nourishing "a general attention to the public affairs."[172] Periodic rebellions would hold governors to "the true principles of their institution,"[173] thus narrowing the gap between republican ideals and institutional practice. Without popular tumults, governors would become "wolves," and there would be a "general prey of the rich on the poor."[174] "God forbid," wrote Jefferson, "that we should ever be" without a rebellion for 20 years[175]¾a fair anticipation of the average interval between nationwide republican moments.
The American founders saw popular resistance not as a means of pressing for change, but as a defense against tyrannical government. Republican moments, on the other hand, have brought wrenching transformations in political, social, and economic life. Both constructs are, however, concerned with the same underlying problem: the natural tendency of government to become estranged from the people and to diverge from the pursuit of the public [Page 328] interest. And both prescribe the same remedy: massive and forceful political intervention by the citizenry.[176]
A strong case might be made that the right of resistance was incorporated into the Constitution via the second amendment right to bear arms,[177] or that it is among those rights that were retained by the people in the ninth amendment.[178] But the right of resistance does not provide an adequate home for popular republican politics. In its traditional formulation, the right was narrowly circumscribed. Resistance would be justified only if government abuses were so widespread, notorious, and unlawful as to amount to tyranny.[179] It could not be exercised by a few individuals or a small faction; participation by the whole "Body of the People" was, at least in theory, essential.[180] To limit republican politics to situations where they could be justified under the right of resistance [Page 329] would thus be to relegate them to the fringes of our constitutional order.
Armed resistance was not, however, the only form of extra-legal popular action during the Revolutionary era. There was an intermediate level of popular involvement more forceful than polite petitioning but less so than violent resistance. Activities in this category included peaceful demonstrations, boycotts, and social ostracism.[181] These activities performed some of the same functions as rebellion, for example arousing the people and holding governors to the "true principles of their institution," but at less cost in life and property. They were precisely the kinds of participation that, as we have seen, typically displace politics-as-normal during republican moments.[182] Their unifying feature was the nonviolent exercise of popular power outside the established institutions of government.
The legal justifications for this type of political action were intimately bound up with the development of the right of the people peaceably to assemble. The remainder of this Part suggests that a home for republican moments may be found in the first amendment's guarantee of that right. In making this claim, I do not mean to imply that courts deciding first amendment cases should stress the distinctions among the rights of assembly, petition, and free speech. Courts quite properly downplay these formal distinctions and instead assess political activities in light of the broad purposes of all three clauses.[183] My claim is that the assembly clause, read in historical context, adds the protection of popular republican political action to those broad purposes. [Page 330]
B. Revolutionary Origins of the Right of Assembly
In 1774, the Continental Congress declared the right of the people "peaceably to assemble, consider of their grievances, and petition the king."[184] This right, which was not expressly recognized in British law,[185] was asserted in response to its attempted suppression by Parliament earlier that year.[186] The Massachusetts Government Act of 1774, one of the "Intolerable Acts," had prohibited citizens from calling meetings "without the leave of the governor," except for specified purposes.[187] In explanation, Parliament chastised the people for abusing their authorization "to assemble together" by treating "upon matters of the most general concern" (meaning telling Parliament how to run the Empire) and passing "many dangerous and unwarrantable resolves."[188]
These "abuses" dated back to the Stamp Act of 1765. After an initial outbreak of violence, American leaders had turned to the relatively peaceful strategy of boycotting British goods and refusing to comply with oppressive laws.[189] Nonimportation associations [Page 331] openly engaged in nonviolent coercion against importers. Meetings voted to "Expose to shame and Contempt" all offenders.[190] Boycott violators were themselves boycotted, often with devastating effect.[191] Crowds of nonimportation supporters visited offenders to demand compliance.[192] In short, the resistance movement employed the kind of intense and impolite protest tactics that are characteristic of republican moments.
These tactics were consciously chosen as "legal & peaceable" alternatives to rioting.[193] While "riots and tumults" might be illegal, it could "be no breach of the laws of nature nor of our country for people to assemble together peaceably."[194] If respectful petitions were ignored, John Dickinson argued, "then that kind of opposition becomes justifiable, which can be made without breaking the laws, or disturbing the public peace," namely "withholding from Great-Britain, all the advantages she has been used to receive from us."[195] When Lieutenant Governor Thomas Hutch-[Page 332] inson of Massachusetts complained that Boston's nonimportation assembly was unlawful and should be immediately disbanded, local justices of the peace responded that there had been insufficient disorder to justify suppression.[196] To Hutchinson, the justices' response missed the point. A few months earlier, he had written that he had found "by experience, that associations and assemblies, pretending to be legal and constitutional and assuming powers which belong only to the Established authority prove more fatal to this authority, than mobs, riots, and the mass tumultuous disorders."[197]
Some conservatives contended that the nonimportation associations were unlawful conspiracies even when their activities were entirely peaceable. They argued that a combination or "confederacy" to coerce citizens into boycotting was criminal and seditious.[198] But the nonimportation activists countered that they could not be prosecuted for combining to commit legal acts; no law compelled them to purchase British goods or to patronize or associate with people who did.[199] It is unclear which side had the [Page 333] better of the argument under English law,[200] but there is no doubt which prevailed among the American leaders. As one nonimportation leader put it, "every body of English freemen" possessed an "undeniable constitutional right" to boycott "if they think it necessary for their preservation."[201]
The colonists' identification of nonviolence as the touchstone of legality was reflected in colonial law. No colonial legislature passed any law resembling the English Tumultuous Petitioning Act of 1661, which criminalized assemblies engaged in nothing more than nonviolent petitioning.[202] A number of colonies did, however, respond to outbreaks of armed rioting and vigilantism by passing riot acts. Like the English Riot Act of 1714,[203] these laws prohibited some number of people (usually twelve, but sometimes as few as three) from remaining unlawfully assembled for more than one [Page 334] hour after having been "read the riot act."[204] The unlawfulness derived either from the commission of a violent act or the intent to commit one.[205]
Although the colonial riot acts contained language vague enough,[206] and punishments severe enough[207] to make a modern first amendment scholar cringe, it appears that in practice they were directed against specific instances of open, armed rebellion. The New York legislature acted after the Green Mountain Boys had carried out numerous armed attacks on New Yorkers.[208] In New Jersey, groups of citizens had repeatedly broken into jails to rescue prisoners.[209] North Carolina's law was passed after adherents of the Regulator movement attacked and beat court officials.[210] By the time the Pennsylvania legislature acted, the Paxton Boys were already marching toward Philadelphia with the avowed purpose of capturing and killing Indians who were there under military protection.[211] Only Connecticut moved before a major outbreak of popular violence. Its legislature was responding to a single jail rescue.[212] In an important departure from the English act, all but [Page 335] Connecticut's expired by their own terms after periods of one to three years.[213]
Despite their limited practical reach, the riot acts were heartily opposed by many colonials as unwarranted intrusions on liberty.[214] By the 1770s, only one of the temporary laws¾New York's¾remained in effect, and in 1778 it was repudiated by the state legislature as "unjust" and "founded in ill policy."[215] When Thomas Hutchinson sought the passage of a riot act in 1770, the Massachusetts House of Representatives replied that it would not legislate "without an apparent and very urgent Necessity" because a riot act would give magistrates "a Power that would be dangerous to the Rights and Liberties of the People."[216]
Eventually, Hutchinson and other loyalists concluded that it would require legislation by Parliament to outlaw collective action.[217] The end result was, as we have seen, the Massachusetts Government Act of 1774, in response to which the First Continental Congress declared the right "peaceably to assemble"¾language now found in the first amendment.[218] One month later, when Hutchinson charged that a Boston meeting called to organize resistance to the tea duty was unlawful, Samuel Adams had a ready reply¾that a free people had a right to meet and consult.[219] [Page 336]
C. Peaceable Assembly as a Form of Popular Sovereignty
We have seen how the right of assembly was initially asserted to justify exercises of popular power. Through modern eyes, it is easy to see how marches, rallies, and nonimportation campaigns could be defended as forms of nonviolent political action. Like the boycotters in NAACP v. Claiborne Hardware Co.,[220] the American founders sought to change what they perceived to be an unjust and unresponsive political system. But there was a more radical dimension to the colonials' exercise of the right. Not only did they develop the notion of actual popular sovereignty¾perhaps their greatest innovation in political theory[221]¾but at least initially they took it literally.
Many, if not most, of the meetings called to organize opposition to British policies claimed to speak not only for those present, but also for the entire people of the town or district. Town meetings, the basic units of local government, provided the main organizational form for the movement in New England. To ensure that the whole people was represented, the normal property qualifications for attendance were often suspended. Towns outside New England, which were not formally organized on the town meeting model, emulated the New England example by calling meetings of the whole people.[222] When it was necessary to coordinate action at the county level, local meetings selected and sent delegates to extralegal county and province "conventions."[223] [Page 337]
To the British and their supporters, these assemblies were patently illegal. While the people had a right to participate in government, once they had "chosen their representatives, that right [centered] in their Representatives alone."[224] It was true that the people of Massachusetts had been authorized to hold town meetings, but that had been "an absurdity" that had the effect of empowering "the lowest and most violent of the mob."[225] Parliament, in the Massachusetts Government Act, banned town meetings precisely to eliminate this exercise of direct democracy. By forcing the citizenry to cede power to town officials, Pownall sought to ensure that "the wise and prudent may act and govern."[226] Lord Germain expected to "see some subordination, some authority and order."[227]
At first, the Americans were careful to explain that their extra-legal assemblies were "loyal and dutiful" supplements to established government.[228] But as British authority crumbled and the revolutionary movement gained momentum, popular assemblies gradually displaced the colonial administration, performing such traditional government functions as regulating the economy, levying taxes, and disposing of the militia.[229] When North Carolina's provincial assembly openly took up the reins of government, it explained that the people had a right to assemble and petition the King.[230] Even after state power had shifted to Congress and the Revolutionary state legislatures, informal popular assemblies continued to be justified, as Samuel Adams asserted in 1777, by the people's right "to assemble upon all occasions to consult measures for promoting liberty and happiness."[231]
D. Peaceable Assembly During the Confederation Period
The defeat of Britain did not bring an end to popular assemblies. On the contrary, so many associations, conventions, and [Page 338] assemblies sprang up that it seemed to some observers that the country would "shortly be overrun by committees."[232]
The most significant turmoil occurred in New England, where farmers, caught in the transition from subsistence to commercial farming, sought debt relief from their state governments. When none was forthcoming, they organized county conventions throughout the region.[233] Remote towns that could not afford to send a representative to the state capital "to wait six weeks or more on the Governor's pleasure" had no trouble sending delegates to the county convention.[234] In addition, conventions, unlike state legislatures, imposed no property qualifications for serving¾a matter of great concern to towns that, as a result of the economic troubles, had not a single citizen who could meet the qualification for election to the legislature.[235] Like their revolutionary predecessors, these conventions passed resolutions, petitioned the legislature, and sometimes claimed sovereign powers.[236]
There was a lively debate over the conventions' legality. As an opening formality, the typical convention voted itself "constitutional" and renounced the use of violence.[237] This did not stop opponents from arguing that although conventions had been appropriate to challenge British power a decade earlier, they could not be justified now that "we have a constitution of our own chusing" that provided for the annual election of representatives.[238] To some, conventions could be lawful only if they met [Page 339] the test for the right of resistance, that government power had "been evidently and notoriously applied to unconstitutional purposes, and no constitutional means of redress" remained.[239]
The farmers turned to the Massachusetts Constitution of 1780, which guaranteed the right of the people "in an orderly and peaceable manner, to assemble to consult upon the common good" and to petition the legislature for redress of grievances.[240] Since the constitution did not prohibit conventions, it was argued, they must be encompassed under the right of assembly.[241] Convention supporters recalled the Revolutionary conventions of the 1770s and argued that the need for the people to assemble outside of the formal government remained as urgent under the new republic as it had been under British rule.[242]
In the end, no attempt was made to prohibit the conventions. Beginning in August 1786, the farmers rendered the issue moot by employing tactics that could be justified only under the right of resistance. In what became known as "Shays' Rebellion," armed crowds surrounded and occupied courthouses in numerous rural towns.[243] Nearly one thousand insurgents marched through Springfield behind fifes and drums, threatening warfare if the court did not adjourn.[244] In late fall, the Massachusetts legislature passed a riot act[245] and suspended habeas corpus.[246] Virginia and Vermont, which had also suffered turbulence, followed suit.[247] [Page 340]
E. The Constitution and the Reestablishment of Politics-as-Normal
The popular assemblies and the disorders of the Confederation period exerted a profound influence on the movement for a constitution. Far from celebrating direct democracy, many erstwhile revolutionaries feared that the people had become "the ready instruments of their own ruin."[248] Even Samuel Adams decided that "popular Committees and County Conventions are not only useless but dangerous."[249] Shays' Rebellion convinced many people that the Confederation had failed and it was time for strong national government.[250] George Washington credited the rebellion with shocking the states into sending delegates to the constitutional convention at Philadelphia.[251]
The Constitutionalists' solution was to erect a strong structure for politics-as-normal. While taking a bow to the right of resistance,[252] The Federalist portrayed popular assemblies as "frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities."[253] The distinctive feature of American government was to be "the total exclusion of the people, in their collective capacity" from the government.[254] Instead of directly participating, the people would delegate power to "a chosen body of citizens" who possessed more wisdom and less inclination toward passion and interest than ordinary citizens.[255] All that remained of the popular republican politics which had brought about the Constitution was an echo in article V authorizing [Page 341] Congress to call constitutional conventions, but only upon application by two thirds of the state legislatures.[256]
F. Republican Moments and the Bill of Rights
Given that the Bill of Rights was, in a sense, the "legacy of the anti-federalists," it would be odd to interpret the first amendment as a mere extension of the political theory embodied in The Federalist.[257] Yet this is precisely what liberal pluralist theory proposes to do.[258] The more natural view¾that the amendment reflects the outlook of the anti-federalists and other strong proponents of a bill of rights¾corresponds better to the legislative history.
During the ratification debates, the anti-federalists repeatedly urged the virtues of a small republic.[259] Backcountry anti-federalists feared a powerful national government that could not be controlled by town meetings or extra-legal county conventions.[260] But direct democracy was not a viable alternative. Given that even [Page 342] the states were too large for a committee of the whole people, representative government was inevitable. Hence, the anti-federalists reluctantly conceded the inadequacy of direct popular government and focused their efforts on trying to keep power centered in the states, where representatives would be relatively responsive to the people,[261] and secondarily on constraining the national government with a Bill of Rights.
Although they failed to incorporate direct democracy into the institutional structure of politics-as-normal, the anti-federalists did join with others to preserve the right that had been invoked to justify extra-legal forms of popular power during the Revolutionary era. A number of states sent proposed amendments to the first Congress along with their ratifications of the Constitution. Four included the right peaceably to assemble.[262]
In the congressional debates, two views of the clause may be distinguished: one weak and one strong. Theodore Sedgwick, a conservative federalist from Massachusetts, put forth the weak view in support of his motion to delete the clause. "If people freely converse together," he argued, "they must assemble for that purpose." Hence, the assembly clause was nothing more than a redundant appendage to the free speech guarantee; indeed, it would be "derogatory to the dignity of the House to descend to such minutiae."[263] John Vining of Delaware embraced the weak conception, but turned it against Sedgwick, pointing out that "if the thing was harmless" and some states strongly desired it, then he might as well support it.[264]
Four congressmen rejected Sedgwick's "trivial" view of the clause, but failed to articulate a clear alternative.[265] Only El- [Page 343] bridge Gerry, a Massachusetts anti-federalist, attempted o provide a context. Although this "essential" right had been abused during Shays' Rebellion, he argued, the "people ought to be secure in the peaceable enjoyment of this privilege."[266]
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."[267] 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.[268] 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."[269] The right to instruct, on the other hand, would bind the representatives, thus promoting factionalism and preventing the representatives from exercising their individual consciences.[270]
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.[271] Jackson embraced this design, but only as a plan for [Page 344] 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.[272] But Jackson could not agree to "the total exclusion of the people, in their collective capacity" from the government.[273] 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.[274] 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. [Page 345]
V. DIRECT POPULAR POWER AND THE FIRST AMENDMENT
In parts III and IV of this Article, I argued that republican moments provide a vital supplement to representative politics-as-normal. If this is true, then the vague guarantees of the first amendment should be purposively construed to protect exercises of direct popular power that carry out this supplementary role.
A. The First Amendment Value of Direct Popular Power
It is certainly possible to argue for rights of forceful protest without drawing on popular republican theory or referring to republican moments. From a liberal pluralist perspective, it can be argued that protest is essential for groups effectively to advance their interests, or that protest enables less wealthy groups to offset the financial power of wealthier groups.
By themselves, however, these arguments have limited appeal. Why should judges force citizens to bear the costs and endure the disruptions of protest merely to give special interest groups fair and equal access to the public through?[276] If fairness is the problem, then why not mandate judges to overturn unfairly enacted legislation or, less drastically, construe statutes in favor of disadvantaged groups.?[277]
The answer¾and it comes as no surprise at this point in the essay¾is that the American constitutional order both requires and embodies a popular republican supplement to remedy the corruption and political degeneration of interest group bargaining. In order to break through the apathy and selfishness of politics-as-normal, social movements often find it necessary to employ forms of protest that are experienced by their targets as coercive. It is not easy to divert citizens from private pursuits or politicians and administrators from the cozy routine of interest group bargaining. When disempowered groups try to "enter the conversation," as [Page 346] Michelman points out, "we" may sometimes feel that they "seek to disrupt it."[278] Higher track lawmaking necessarily involves "passion, debate and conflict."[279] If the public life is to present a viable alternative to private pursuits, it must encompass "not only communication, but the development and exercise of power, the power to create new forms as well as the strength to resist existing structures."[280]
The republican value of direct popular power adds a factor to be weighed in first amendment balancing. Consider, for example, the recent residential picketing case, Frisby v. Schultz.[281] In Frisby, antiabortion activists peacefully picketed the home of a doctor who performed abortions at nearby medical clinics. The Court upheld an ordinance that, as judicially narrowed, barred "focused picketing taking place solely in front of a particular residence."[282]
It is difficult to avoid the conclusion that the majority simply identified with the homeowner's desire for privacy, while showing no interest in the function of the picketing as a form of moral discourse. According to the majority opinion, the picketing "inherently and offensively" intruded on residential privacy with "devastating" consequences. Even a lone picketer could "invade" privacy, as few of "us" would feel comfortable with a stranger who "lurks" outside.[283]
Meanwhile, the Court had little to say about the value or function of residential picketing, other than to characterize it as "narrowly directed at the household," and thus not implicating the constitutional value of public communication.[284] Justice Stevens in his dissent went further, suggesting that repeated picketing would serve no purpose except "to harm the doctor and his family."[285]
These statements betray a lack of sensitivity to the role of picketing in the activists' effort. Even if the protesters aimed solely to stop the doctor from performing abortions, they undoubtedly expected that unwanted notoriety among his neighbors would help [Page 347] accomplish their end. By removing the shield of anonymity, they transformed what might otherwise have been a private career decision into a public moral issue. Ever since colonial tax resisters held rallies at the homes of British sympathizers, residential protest has served this function.[286]
While it is true that the picketers were exhibiting hostility toward the doctor, it is also true that they were treating him as a member of a moral community. Instead of writing him off, they evidently felt that an hour or two of picketing every week might be enough to induce him to cease performing abortions.[287] This hope would not, of course, be fulfilled if the doctor was strongly committed to keeping abortion available. Whatever the outcome, the picketers were, by their act of moral commitment, testing his. Although the test might be devastating to the Supreme Court's "us," it was also an entirely nonviolent means of injecting moral passion into public political discourse, an essential step on the road to a republican moment.[288]
B. The Value of Direct Popular Power Embodied in Current Doctrine: The Constitutional Right to Boycott
While ignoring the republican function of direct popular power in Frisby, the Supreme Court has nevertheless placed it at the core of the first amendment doctrine governing boycotts. The resulting case law provides the most fully developed example of the Court's approach toward direct popular power.
1. Background: Claiborne Hardware and SCTLA
Eight years ago, in NAACP v. Claiborne Hardware Co.,[289] the Supreme Court addressed the constitutionality of a state tort judgment against black citizens who had conducted a boycott of [Page 348] white businesses in Port Gibson, Mississippi. The boycott was a classic instance of popular republican politics.
The local branch of the NAACP had petitioned the county government and private businesses, urging them to provide equal treatment for blacks.[290] When the response proved unsatisfactory, several hundred black citizens met at a church and voted unanimously to boycott white merchants.[291] Boycott supporters picketed white-owned stores and organized a group known as the "Deacons," or "Black Hats" to enforce the boycott.[292] Violators were publicly identified as "traitors" to the black community, socially ostracized, occasionally threatened with violence, and very occasionally physically attacked.[293]
The Supreme Court held that the first amendment protects peaceful civil rights boycott activities and overturned the tort judgment against the boycotters.[294] "Speech," said the Court, should "not lose its protected character . . . simply because it may embarrass others or coerce them into action."[295] Furthermore, although violence was "beyond the pale" of the Constitution, violent acts would not render a boycott unprotected unless the plaintiffs could meet the "heavy" burden of establishing that "fear rather than protected conduct was the dominant force in the movement."[296]
Last term, in FTC v. Superior Court Trial Lawyers Association ("SCTLA"),[297] the Court unanimously rejected a claim that Claiborne Hardware protected a concerted refusal by lawyers to serve as court-appointed defense counsel until their hourly fees were raised.[298] The Court distinguished Claiborne Hardware on grounds that closely parallel the definition of republican moments. While the civil rights boycotters "sought no special advantage for them-[Page 349] selves," the lawyers' "immediate objective was to increase the price that they would be paid for their services."[299] Unlike the lawyers, the NAACP was fighting to implement the constitutional ideal of equality, to obtain the "equal respect and equal treatment to which they were constitutionally entitled."[300] Their struggle transcended the day-to-day conduct of business as usual: "Equality and freedom are preconditions of the free market, and not commodities to be haggled over within it."[301]
2. The Right to Boycott as a Popular Republican Supplement to Representative Politics
From a liberal pluralist viewpoint, these distinctions make little sense. As we have seen, liberal pluralist theory is comfortable with the notion that politics consists of manipulating state power for private gain. Indeed, judicial discrimination between selfish and virtuous political activities conflicts with the liberal commitment to neutrality among speakers and viewpoints.[302]
Where politics-as-usual is concerned, the Court has not hesitated to carry this neutrality principle through to its logical conclusions. In Eastern Rail Road Presidents Conference v. Noerr Motor Freight,[303] for example, an association of railroads engaged in an anti-trucking publicity campaign aimed at securing the passage of legislation restricting the trucking industry, the railroads' major competition. The railroads were thus more obviously self-interested than the SCTLA lawyers, who could plausibly claim to be concerned about the quality of representation for criminal defendants as well as their own pocketbooks. But the Court dismissed the railroads' motive as irrelevant.[304] In order to avoid "important constitutional ques-[Page 350] tions," it held that the Sherman Act did not prohibit the campaign.
The SCTLA Court distinguished Noerr exactly on the line between representative politics and direct popular power. While the alleged restraint of trade in Noerr "was the intended consequence of public action," the SCTLA boycott "would have had precisely the same anticompetitive consequences . . . even if no legislation had been enacted."[306] In other words, the railroads in Noerr were using the normal processes of representative government to obtain a legislative restraint on trade, while the SCTLA lawyers were directly exercising their collective economic power to fix prices.[307]
One might ask why this should make a difference. The answer depends on one's political viewpoint. From an elitist republican perspective, the vice of the SCTLA boycott was that it circumvented the Madisonian check on popular passions and interests. While the process of deliberation among purportedly virtuous representatives normally ensures that legislation serves public ends, the SCTLA lawyers bypassed this safeguard when they exerted direct economic pressure on the city.
From a liberal pluralist perspective, on the other hand, the outputs as well as the inputs of government may properly serve private purposes. Since judges cannot distinguish between private and public interests without improperly drawing on their own controversial value preferences, the best they can do is ensure that [Page 351] conflict among interest groups is played out according to the rules of the game. In this view, the SCTLA abandoned its constitutional shield when it chose to exercise power outside the constitutionally-established process of representative government.
While both elitist republicanism and liberal pluralism can thus distinguish Noerr from SCTLA, neither can distinguish SCTLA from Claiborne Hardware. Like the lawyers in SCTLA, the civil rights boycotters in Claiborne Hardware exercised power directly, thus bypassing the filter of representative politics (be it an elitist republican filter of virtue operating on outcomes, or a liberal pluralist filter of fairness operating on process).
Claiborne Hardware thus appears to be a popular republican exception to the normal judicial preference for representative government.[308] Taken together, SCTLA and Claiborne Hardware hold that popular republican tactics are constitutionally protected, but only if they exhibit the virtues of popular republicanism: namely, the pursuit of interests broader than immediate pecuniary gain, and an appeal to fundamental ideals.[309]
This reconciliation aids in explaining the contrasting results in Claiborne Hardware and International Longshoremen's Association v. [Page 352] Allied International ("ILA"),[310] a problem that has attracted wide attention from commentators.[311] ILA involved a refusal by longshoremen to unload Soviet goods as a protest against the Soviet invasion of Afghanistan. As in Claiborne Hardware, the boycotters were pursuing a broad social goal rather than narrow self-interest.[312] But the ILA's boycott was not an exercise of popular republican politics. ILA president Thomas Gleason had "ordered ILA members to stop handling cargoes."[313] Far from engaging in an exercise of positive freedom, the longshoremen acted " i n obedience to" Gleason's order.[314] Given the long history of autocracy in the ILA, the coercive power Gleason held over individual workers, and the workers' inability to leave the union's jurisdiction without sacrificing their jobs,[315] the boycott could hardly be viewed as an exercise in democracy.
3. An Expansive Reading of the Right
That the theory of republican moments helps to explain the boycott decisions does not mean that it supports them. By attempting to tailor first amendment protection to virtuous protests, the [Page 353] Court may have unduly constricted the space for popular republican politics. Even campaigns for the lofty goals of equality and freedom often focus on immediate economic gains, especially when the participants are economically disadvantaged. The "Don't Buy Where You Can't Work" boycotts of the 1930s and 1940s prefigured the more political boycotts of the 1950s and 1960s.[316] The Claiborne Hardware boycotters themselves were demanding more jobs for themselves and their families.[317] Even the colonial Whig nonimporters were seeking to reduce taxes and, in some cases, to destroy competitors who were dependent on British imports.[318]
There is also a suggestion in SCTLA that boycotters may be protected only when they are seeking to enforce rights that are already recognized by courts as constitutionally guaranteed.[319] Rights-creation, however, is one of the hallmarks of republican moments.[320] Whatever one may think about the concept of rights at the level of philosophy, there is no doubt that rights discourse has historically served as the primary point of connection between popular movements and constitutional jurisprudence.[321] In mass meetings as well as court proceedings, the labor movement advanced "labor's constitution," a vision of labor rights grounded in the first and thirteenth amendments, as an alternative to the jurisprudence of Lochner era judges.[322] The civil rights move-[Page 354] ment¾through its leading spokesman, Martin Luther King, Jr.¾likewise asserted its constitutional vision in opposition to the prevailing positive law.[323] If disempowered groups are to be heard in constitutional discourse, the courts must protect their struggles to create new rights as well as to enforce old ones.
The Court's use of noneconomic objectives and constitutional concerns as criteria for protection will involve judges in highly problematic judgments about the value of protests. Suppose the Claiborne Hardware boycotters had been demanding only that segregated employers hire blacks. Would their "economic" objective have rendered their protest unprotected?[324] What if a group with economic objectives, having read SCTLA, adds political demands to its economic demands? If a group claims, as unions and workers did in the 1930s, that it is fighting for its constitutional rights, should protection hinge on whether the group's view of the Constitution coincides with that of the judges? Should environmentalists be denied constitutional protection because their demands do not refer to any recognized constitutional right?[325]
If popular republican politics are to be given adequate space, judges will have to abandon the effort to limit protection to virtuous protests over fundamental issues. While popular republican theory provides the reasons for protecting such protests, it cannot provide criteria determinate enough to enable judges to distinguish them from other, less noble protests.[326] Judges cannot be expected to anticipate which social movements and which issues will eventually trigger full-scale republican moments. Demands that will later be recognized as political and fundamental may initially be [Page 355] seen as narrow, self-interested, and factional. Like most citizens, judges may feel skeptical about protesters' motivations and irritated at the disruptions they cause.[327] It can take a prolonged period of mass political action and education to change their minds. The Supreme Court, for example, was able to recognize the constitutional value of labor organizing and picketing only after the republican moment of the 1930s had been underway for years.[328] By that time, the Wagner Act had been passed and the decisive organizing victories won.[329] Although the Court did a better job of protecting civil rights protests, the most important decisions did not come until the republican moment of the 1960s was in full swing,[330] and the Court did not get around to protecting boycotts until Claiborne Hardware in 1982. During the crucial, early stages of both movements, when they were politically isolated and in desperate need of constitutional protection, courts not only denied protection but actively suppressed their protests.[331]
Although the SCTLA language on noneconomic and constitutional objectives suggests that these failings are likely to be repeated, the Court did supply a narrow interpretation of its holding. In response to the dissent, which emphasized the value of [Page 356] boycotting as a form of political communication,[332] the majority noted that "this case involves not only a boycott but also a horizontal price-fixing arrangement¾a type of conspiracy that has been consistently analyzed as a per se violation of the anti-trust laws for many decades."[333] As the Court pointed out, this price-fixing element distinguishes the SCTLA boycott from those listed by the dissent, which included the colonial boycotts against the British, the Montgomery bus boycott, NOW's boycott in support of the ERA, the United Farm Workers' grape boycott, and a host of others.[334] If limited to price-fixing conspiracies, the holding of SCTLA would thus leave most popular republican boycotts protected.[335]
VI. REPUBLICAN STATUTES
Republican moments invariably yield many laws. Some of these laws take the form of constitutional amendments or pathbreaking judicial opinions, a theme pursued by Bruce Ackerman in his recent contribution, Constitutional Politics/Constitutional Law.[336] Most, however, are statutes. The two most recent republican moments, the New Deal period and the 1960s, produced mainly statutes.
How should courts treat these legislative products of republican moments? Here, Ackerman's initial suggestions are disturbing. The [Page 357] Storrs Lectures endorse an active role for the Supreme Court in overturning the legislative victories won by transformative social movements.[337] By sitting on the legislative steam valve, the Supreme Court alerts the people that a major change is in the offing, giving the opposition an opportunity to mobilize and forcing the transformative movement to raise the level of political struggle to a "fever pitch."[338] Lochner and, perhaps, Dred Scott thus emerge as examples of the proper exercise of judicial review.[339]
This view bears an unmistakable resemblance to the tongue-in-cheek revolutionary slogan: "The worse the better!" In order to maintain a sharp distinction between the two tracks of lawmaking, Ackerman would have courts nullify the legislative outcomes of popular republican politics, thus forcing a constitutional showdown. As we have seen, this approach writes off all but three popular upsurges, about one every seventy years, and seemingly approves of intensifying the level of struggle to the point that armed combat may be necessary to decide the issue¾as occurred in two of Ackerman's three periods.
Although judicial hostility may at times intensify republican moments by pushing social movements to greater efforts, the more straightforward and likely result is the spreading of cynicism and political apathy. Thus, for example, the judicial nullification of the early civil rights statutes and the populist-inspired economic regulation thwarted and demoralized instead of inspiring the radical republican and populist movements. And, as William Forbath has suggested, a combination of labor injunctions and judicial nullification of labor's legislative victories during the late 19th and early 20th centuries may have been decisive in transforming the American labor movement from a broad social movement into a narrow, commercially-oriented interest group.[340] [Page 358]
This part suggests that statutes resulting from a process of heightened political participation and public awareness should be broadly construed, both by courts and administrative agencies. In making this proposal, my aim is not to develop a comprehensive theory of statutory interpretation, but to suggest that one important consideration should be reaping the maximum gain from our occasional and costly republican moments.
A. Statutory Construction
Courts employ two basic methods in dealing with ambiguities, gaps, and conflicts in statutory language: broad and narrow construction. A judge applying broad construction abstracts the question of legislative intent to the level of purpose. She identifies the primary purpose of the statute and construes ambiguitis, fills gaps, and resolves conflicts so as to effectuate that purpose. Instead of asking whether Congress intended, for example, to prohibit some activity which is not explicitly mentioned in the statute, she asks whether the prohibition of that activity is necessary to carry out Congress's purpose in enacting the statute. This approach is embodied in the principle that remedial statutes are to be broadly construed.
A judge applying narrow construction, on the other hand, interprets the legislation as she would a contract. To borrow Professor Easterbrook's description, a judge
first identifies the contracting parties and then seeks to discover what they resolved and what they left unresolved. For example, [s]he may conclude that a statute regulating the price of fluid milk is a pact between milk producers and milk handlers designed to cut back output and raise price, to the benefit of both at the expense of consumers. [She] then implements the bargain as a faithful agent but without enthusiasm; asked to extend the scope of a back-room deal, [s]he refuses unless the proof of the deal's scope is compelling.[341]
This method corresponds to the traditional maxim that statutes in derogation of the common law are to be narrowly construed.
The Supreme Court regularly employs both methods.[342] The [Page 359] Court is rarely clear, however, on why it has selected one rather than the other.[343] Professor Easterbrook has suggested that broad construction should be applied to "general-interest" statutes, narrow to "private-interest" statutes.[344] A law prohibiting murder is a clear example of the former, a tobacco subsidy of the latter.
In borderline cases¾which constitute the great majority¾Easterbrook suggests that the courts should search for evidence that the statute resulted from a deal among private interests. Specifically, they should look at three factors: (1) the statutory language (the more detailed it is, the more likely there was interest-group give-and-take); (2) indicators of rent-seeking (e.g., statutory barriers on new entry to the regulated industry, subsidies extracted from one group and granted to another, and prohibitions against buying and selling statutory entitlements); and (3) the legislative process (e.g., who lobbied for the legislation, and what deals were struck). A statute enacted without a serious contest among interest groups is, in Easterbrook's view, more likely to be in the general interest.[345]
Were all statutes to be found on the spectrum from general to private interests, Easterbrook's proposal would amount to nothing more than economic due process writ small. The second factor would ensure that redistributional statutes were construed narrowly. The third factor, with its emphasis on consensus, would relegate the [Page 360] legislative victories of controversial social movements to similar treatment.
Easterbrook recognizes, however, that some statutes "are designed to implement principles of morality" and thus "cannot easily be analyzed on a continuum between public interest and private interest."[346] This point raises new questions: how are morality-implementing statutes to be recognized, and what method of construction is appropriate? Easterbrook does not address these questions other than suggesting that morality-implementing statutes are to be distinguished from statutes designed "to influence economic conduct."[347] Thus depicted, morality-implementing statutes are beyond the scope of Easterbrook's project, which is to assess the Supreme Court's performance vis-a-vis the economic system.
The dichotomy between statutes designed to implement morality and statutes designed to influence economic conduct is transparently false. Many statutes are intended, at least in part, to impose moral strictures on economic activity. By its terms, the Federal Trade Commission Act prohibits "unfair," not inefficient, methods of competition.[348] There is no inherent contradiction between moral and economic conduct.
Ackerman's notion of higher-track lawmaking, supplemented by the theory of republican moments, suggests a more appropriate axis of comparison. Statutes that result from higher track lawmaking¾call them "republican" statutes[349]¾should receive a broad construction; products of interest group bargaining should, as Easterbrook suggests, be narrowly construed. The many statutes that fall in the neither zone between these two categories should be con-[Page 361] strued according to whatever background rule is in effect¾broad construction according to some,[350] narrow according to others.[351]
Republican statutes may be identified by examining their history for the factors associated with republican moments: (1) widespread and serious public discussion; (2) debate framed in terms of principle and public good; (3) an intention to bring about major changes in the legal order; (4) direct citizen action, such as social protest; and (5) extensive activity by voluntary associations and social movements. These factors precisely negate the picture of the legislative process that shapes Easterbrook's (and other public choice theorists') view of interest group bargaining: back-room deals among self-interested power brokers dividing the spoils of government.
Consider, for example, the contrast between the process leading to enactment of the Civil Rights Act of 1964 and that giving rise to the Smoot-Hawley Tariff of 1930.[352] The Civil Rights Act was preceded by a period of public discussion triggered by militant protests.[353] Religious groups led the push for legislation.[354] The legislative history is full of fundamental rights rhetoric.[355]
In contrast, the Smoot-Hawley Tariff was enacted almost entirely through the efforts of interest groups pursuing protection for their own product markets.[356] Public participation and arguments of principle were conspicuous by their absence.
For a more difficult test of the distinction, consider the National Labor Relations Act of 1935 ("NLRA") and the 1959 Landrum-Griffin amendments to the NLRA. Both involved restrictions on [Page 362] economic activity and both were contested by a similar cast of interest group representatives. The NLRA was, however, the product of a broad-based social movement seeking fundamental reform in the system of labor relations. During the period leading up to its enactment, civil libertarians and religious leaders joined with workers in an escalating campaign for the right to organize.[357] They broke through politics-as-normal with demonstrations, strikes, and acts of civil disobedience. "In 1934," as Irving Bernstein succinctly put it, "labor erupted" in countless strikes, including successful general strikes in San Francisco and Minneapolis.[358] Although many special interest statutes have come into being with a sugarcoating of reformist rhetoric, the legislative history of the NLRA leaves no doubt that its proponents contemplated a dramatic shift in the system of industrial relations toward collective bargaining and away from unilateral employer control.[359] By all accounts, the Act wrought profound changes.[360]
The 1959 amendments to the NLRA present an interesting contrast. In addition to the amendments, the Landrum-Griffin Act enacted a new law designed to combat internal union corruption and autocracy. This law, the Labor Management Reporting and Disclosure Act, began as a response to widespread public concern over intra-union corruption, which the McClellan Committee had spotlighted vividly in a highly-publicized series of hearings.[361] [Page 363] The NLRA amendments were added later during a series of maneuvers by interest group lobbyists.[362] While the NLRA amendments sparked the main controversy in Congress, public participation was limited to letter writing, and then only in reaction to campaigning by interest group staffers and speeches by political figures, most prominently President Eisenhower.[363] Neither management nor labor was able to attract active support from other constituencies. Throughout the process, the amendments were thought of as incremental adjustments, not as fundamental reforms. In short, none of the indicators of higher-track lawmaking were present.
Of course, the distinction will not always be easy for judges to make. As Jonathan Macey has pointed out, judges "interpret statutes; they are not investigative reporters."[364] It is much easier, however, to identify republican statutes than to single out interest group statutes, the problem that concerned Macey. While interest group politics thrive in smoke-filled rooms, citizen self-government is out in the open for all to see. A judge need not be an investigative reporter to recognize that, for example, the Civil Rights Act and the NLRA were products of exceptional citizen involvement.
The identification of republican statutes is not as "value-laden and political"[365] as is Easterbrook's distinction between public interest and special interest statutes. Although Easterbrook's distinction requires a substantive conception of the public interest (which, in his view, should be defined according to the highly controversial theory of neoclassical economics), republican statutes can be singled out by a relatively procedural test. The criteria listed above do not, for example, distinguish between a "pro-choice" and a "pro-life" law, or between neoclassical and critical economic philosophy, or even between social Darwinism and socialism. They [Page 364] embody only the admittedly value-laden, but imminently defensible, preference for active citizen democracy over special interest politics.
Whatever the difficulties of identifying republican statutes, they pale in comparison to the drawbacks of not making the attempt. Macey, for example, would jettison broad construction altogether because many purportedly remedial statutes are merely a "guise for the transfer of wealth to some favored group."[366] Judge Posner proposes the same result out of concern that a broad construction would "upset the compromise that the statute was intended to embody."[367] While Macey and Posner would relieve judges of the necessity for determining which statutes are remedial, they would also condemn the products of higher-track lawmaking to the same cramped construction accorded interest group statutes, thus insulating special interest politics against republican legislation. The obstacles to movements for higher lawmaking are formidable enough without forcing them to run a final gauntlet of narrow construction.
In response to an earlier draft of this proposal, a number of readers expressed the fear that the legislative victories of reactionary social movements would be entitled to a broad construction. The right-to-life movement has, for example, been known to engage in higher-track lawmaking as defined here. The obvious answer is that any serious supporter of democracy must be prepared to accept the possibility that the people may disagree with her personal views. As long as the popular republican process is not sabotaged by repression,[368] its legislative products warrant broad construction regardless of their conservative or liberal content.
B. Administrative Implementation
We have seen how difficult it is for social movements to overcome politics-as-normal and win reform legislation. The difficulties do not end with the signing of a bill into law. After the legislative victory, administrators must enforce the new law in an environment that is conducive to interest-group politics. Professor Blumrosen's description of the problem warrants extended quotation: [Page 365]
We can safely begin our analysis with the proposition that achieving reform is difficult under any conditions. Implementing reforms may be costly to the regulated community; may require changes in individual and institutional behavior which has been traditional and appears legitimate to the individuals involved; may imply guilt or immorality where none is felt by the individuals involved and may appear wrong or unnecessary to respondent personnel. And reform almost always introduces uncertainty which tends to immobilize respondents rather than lead them toward compliance. Faced with resistance based on these factors, the administrator's task is virtually impossible unless it can be demonstrated that substantial compliance with the reform legislation will actually be required. The basis for such an assertion finally ¾ and initially ¾ must be an interpretation of the law itself. . . . Yet 'administrative discretion' permits the agency to avoid this fundamental point by a variety of devices including endless study, leaving the matter 'to the courts,' or a narrow interpretation of the statute.[369]
Blumrosen suggests that courts should stiffen agency resolve by requiring broad construction of reform statutes.[370] Although the Supreme Court does require broad construction on occasion,[371] it has failed to articulate any principle explaining when it will and when it will not.[372] [Page 366]
Professor Blumrosen's proposal would resolve a large number of the most important cases. Unfortunately, he does not tell us how to distinguish a reform statute from other kinds of legislation. This gap can be filled with the criteria proposed here for identifying republican statutes.[373] When the process leading to the enactment of a statute transcends politics-as-normal, the agency enforcing it should be protected against the onslaught of interest group politics afterward.
Thus elaborated, Blumrosen's rule has clear advantages over other proposals for reducing the impact of special interest politics on agency decisions. Instead of giving the courts a broad mandate to trump agency statutory construction[374] ¾ a power that has often been used to shackle aggressive agency construction of republican statutes[375] ¾ it enlists the courts in an effort to maximize the results of higher lawmaking.
CONCLUSION
Strong democracy comes in pulses. During republican moments, large numbers of normally quiescent citizens enter the public arena to struggle for their visions of the common good. Passion and moral commitment set the tone for public discourse. Groups that are underrepresented in special interest bargaining use mass [Page 367] protest and other forms of direct power to place their concerns on the public agenda. Aroused citizens disrupt cozy relationships among politicians, administrators, and interest group lobbyists.
Republican moments are the times when the basic direction of the country (or state or municipality) is at issue, and our core ideals of liberty and equality become matters of urgent concern to broad sections of the populace. Most of the great rights we celebrate today were products of the unruly and passionate politics of republican moments.
Talk of strong democracy and direct popular power sounds romantic in these times of hard-nosed economism. Paradoxically, however, direct popular power provides an effective, if partial and temporary, antidote to three of the most serious political evils identified by the economic theory of collective action. First, social movements use direct power to overcome the "free-rider" problem and other barriers to political participation, in the process replacing public choice theory's "logic" of collective action with an alternative logic of collective empowerment and moral choice. Second, direct popular power can dislodge or bypass the logjam created by interest group bargaining, thus redirecting the public agenda away from private deals and toward basic issues of public policy. Finally, direct popular power enables groups that are underrepresented in interest group bargaining to offset ¾ if only for a moment ¾ the disproportionate influence enjoyed by compact, wealthy interest groups during politics-as-normal.
The Constitution, of course, erects a system of representative ¾ not direct ¾ democracy. Its most effective proponents sought to temper special interest politics with deliberations among an elite of virtuous representatives, not with pulses of direct popular power. The Bill of Rights, however, added a potentially subversive supplement to the representative scheme.
Read in context, the first amendment carves out the constitutional space for direct popular power. In the political theory and practice of the founding generation, the right of the people peaceably to assemble encompassed not only the right to meet, but also to exercise extra-institutional forms of power, ranging from nonviolent rallies and boycotts to the displacement of representative government by popular assemblies. Direct power was seen as a necessary corrective to the natural tendency of government to degenerate into corruption and tyranny. Here, as elsewhere, the framers deliberately built a conflict into the constitutional scheme, [Page 368] this one between representative government and direct popular power.[376]
The theory of republican moments has two major implications for legal doctrine. First, it provides arguments for expanding the protection of direct popular power under the first amendment. Understanding the long-run functions of direct power may help to forge the kind of civic courage that can sustain a commitment to free speech and assembly in the midst of popular tumult.[377]
Second, the theory suggests that courts and administrative agencies should give a broad construction to the statutory and constitutional products of republican moments. For brief periods of time, at a considerable cost to business-as-normal, direct popular power offsets the worst flaws of interest group bargaining. These times should be seen as precious ¾ albeit unsettling ¾ moments of strong democracy. The resulting statutes, which I have called "republican statutes," embody unusually accurate expressions of the popular will. When the level of participation subsides, courts and administrative agencies should serve as agents of the republican moment, preserving the thrust of republican statutes against the inevitable lethargy and corruption of interest group bargaining. Failure to do so can only reflect, as Frederick Douglass lamented when the Supreme Court invalidated the Civil Rights Act of 1875, a failure of historical memory.[378]
* Associate Professor of Law, Rutgers University School of Law, Newark, New Jersey. A.B. 1974, J.D. 1983 Harvard University. Earlier versions of this paper were presented to the Boston University Legal History Group and the Rutgers Law Faculty Colloquium. The final product benefitted greatly from critical comments by Akhil Reed Amar, C. Edwin Baker, Cathie Jo Martin, Eric Neisser, Richard Davies Parker, and John M. Payne. I am especially indebted to Vicki Been, Richard Revesz, and Aviam Soifer, who provided detailed critiques on short notice. James C.N. Paul gave guidance and encouragement throughout. Able research assistance was provided by Lisa Buckley, John Cioffi, Angela DiLeo, Nancy Gage, Sandra Levy, Mary Uva, Rosalind Westlake, and David Zuckerbrot. The S.I. Newhouse Research Fund supplied much-needed financial support.
1. P. FONER, FREDERICK DOUGLASS 11 (1964) (quoting Frederick Douglass).
2. Letter from Thomas Jefferson to James Madison (Jan. 30, 1787), in 11 THE PAPERS OF THOMAS JEFFERSON 92, 93 (J. Boyd ed. 1955) [hereinafter JEFFERSON PAPERS].
3. E. DURKHEIM, SOCIOLOGY AND PHILOSOPHY 91-92 (1965).
4. Letter from John Adams to Thomas Jefferson (May 19, 1821), in 10 THE WORKS OF JOHN ADAMS 398 (C. Adams ed. 1856).
5. See THE FEDERALIST No. 10, at 83 (J. Madison) (C. Rossiter ed. 1961).
6. Initially, it was enough that pluralism would serve as a defense against totalitarianism. See D. RODGERS, CONTESTED TRUTHS: KEYWORDS IN AMERICAN POLITICS SINCE INDEPENDENCE 209 (1987). Claims of fairness and efficiency were added later. See, e.g., D. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION 510-15 (1951) (contending that citizens' overlapping membership in interest groups provides a "balance wheel" in the system, and that pluralist politics are characterized by "widespread, frequent recognition of and co formity to the claims of . . . unorganized interests").
7. See H. HART & A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1156-57 (tentative ed. 1958). On the influence of interest group pluralism on Hart & Sacks and the Legal Process school, see Eskridge, Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 281-83 (1988); Minda, Interest Groups, Political Freedom, and Antitrust: A Modern Reassessment of the Noerr-Pennington Doctrine, 41 HASTINGS L.J. 905, 940-41 (1990).
8. See J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); J. ELY, DEMOCRACY AND DISTRUST (1980).
9. See Parker, The Past of Constitutional Theory-And Its Future, 42 OHIO ST. L.J. 223, 223 (1981) (analyzing J. CHOPER, supra note 8; J. ELY, supra note 8).
10. See Epstein, Modern Republicanism-Or the Flight From Substance, 97 YALE L.J. 1633, 1641 (1988). For an early and influential diagnosis of the disease, see E. SCHATTSCHNEIDER, THE SEMI-SOVEREIGN PEOPLE (1960).
11. Farber & Frickey, The Jurisprudence of Public Choice, 65 TEX.L.REV. 873, 925 (1987).
12. See Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 224 (1986).
13. The pathbreaking work explaining the rationale for individual inaction is M. OLSON, THE LOGIC OF COLLECTIVE ACTION (1965).
14. See infra note 118 and accompanying text.
15. See M. OLSON, THE RISE AND DECLINE OF NATIONS 34-35 (1982). For additional discussion and sources, see infra notes 135-39 and accompanying text.
16. See H. ARENDT, THE HUMAN CONDITION 22-69 (1958); infra notes 120-21 and accompanying text.
17. For a classic treatment of the difficulty of achieving republican ideals in a state too large for direct democracy, see J. ROUSSEAU, The Social Contract, in THE SOCIAL CONTRACT AND DISCOURSES 1, 93-96 (G. Cole ed. 1950). The problem of size is discussed infra notes 39-71 and accompanying text.
18. Richard Epstein, for example, urges the courts to strike down legislation that infringes common law economic rights. See R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); Epstein, Taxation, Regulation, and Confiscation, 20 OSGOODE HALL L.J. 433, 437-38 (1982).
19. Among the new republicans, for example, the most far-reaching proposal is Frank Michelman's suggestion that instead of deferring to the elected branches, the Supreme Court should itself model "the active self-government that citizens find practically beyond reach." Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 74 (1986). For a proposal grounded in feminist theory that would similarly call upon the Court to "enact and preside over" the normative dialogue, see Minow, Foreword: Justice Engendered, 101 HARV. L. REV. 10, 95 (1987).
20. Macey, supra note 12, at 268; see also Farber & Frickey, supra note 11, at 926 (apologizing for failing to provide a "panacea" for the problem of special interest groups). Although some of these weapons would undoubtedly be useful, few rely on the power of democracy. Instead, they propose incremental transfers of power from the legislative or executive branches to the judiciary or the private market. See, e.g., Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 69-72 (1985) [hereinafter Sunstein, Interest Groups] (recommending that the level of judicial scrutiny in rationality review be heightened); Macey, supra note 12, at 264-65 (suggesting the revival of the principle that a statute in derogation of the common law should be narrowly construed because it "limits the scope of inefficient statutes by protecting the domain of efficient common law rules from encroachment by ill-conceived, special interest statutes"); Mashaw, Constitutional Deregulation: Notes Toward a Public, Public Law, 54 TUL.L.REV. 849, 873-75 (1980) (recommending the expansion of suspect or quasi-suspect classification analysis to all politically disadvantaged groups); Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 742 (1985) (same); Eskridge, Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1093 (1989) (suggesting that statutes should be construed so as to effectuate "substantive values--such as nondiscrimination, first amendment concerns, and environmental policy"); Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1583 (1988) [hereinafter Sunstein, Republican Revival] (approving of "a judicial perception that statutes should be construed so that the aggregate social benefits are proportionate to the aggregate social costs"); Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 463-78 (1987) [hereinafter Sunstein, Constitutionalism] (arguing that courts should more closely scrutinize administrative action); Macey, supra note 12, at 263-64 (same).
21. For readers who cannot wait for a fully developed presentation of this construct, a definition is located infra text accompanying notes 106-10.
22. See THE FEDERALIST NO. 10 (J. Madison).
23. M. WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY 323 (M. Rheinstein trans. 2d ed. 1954).
24. Indeed, in the emerging post-industrial era, organization and persuasion may be more potent sources of power than property or the means of violence. See, e.g., J. GALBRAITH, THE ANATOMY OF POWER 131-59 (1983) (arguing that traditional sources of power, such as property, are effective mainly in terms of the amount of "social conditioning" their possessors can buy or otherwise bring to bear in order to attain their ends). Although this form of power may be exertedsubtly¾sometimes so subtly that the target is unaware of its exercise--we are more concerned here with the overt varieties. Hidden conditioning is a tool of established elites. Popular movements lack the centralization, discipline, and secrecy necessary to engage in subtle manipulation; of necessity they conduct their politics out of doors.
25. Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 678-79 (1976) (quoting James v. Valtierra, 402 U.S. 137, 141, 143 (1971)). For criticisms of Eastlake on this point, see Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 IND. L.J. 145, 185 (1978) and Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc., 91 HARV. L. REV. 1373, 1408-11, 1414-15 (1978).
26. See T. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 109-13 (1989) (summarizing the empirical literature and concluding that money is extremely effective in defeating referendum initiatives, especially when it is used to purchase "tricky and subtle" advertising); Berg & Holman, The Initiative Process and its Declining Agenda-Setting Value, 11 LAW & POL'Y 451, 451-52 (1989) (observing that the initiative qualifying process has become "professionalized," resulting in increased dominance by well-financed interest groups).
27. The publication of Ely's and Choper's books, for example, aroused a storm of criticism. See, e.g., Symposium: Judicial Review Versus Democracy, 42 OHIO ST. L.J. 1 (1981) (featuring fifteen articles criticizing Ely's and Choper's books); Estreicher, Platonic Guardians of Democracy: John Hart Ely's Role For the Supreme Court in the Constitution's Open Texture (Book Review), 56 N.Y.U.L. REV. 547 (1981) (criticizing Ely for his argument that the Court should use judicial review only to correct the excesses of interest group politics); Sager, Constitutional Triage (Book Review), 81 COLUM. L. REV. 707, 719 (1981) (criticizing Choper for his "too comfortabl[e]" acceptance of the present standard of judicial deference to the legislative and executive branches).
28. See supra note 18.
29. This project was suggested by Richard Parker in an article critiquing Ely. See Parker, supra note 9, at 258 n.146. For Michelman's and Sunstein's pioneering efforts, see Michelman, supra note 19; Sunstein, Interest Groups, supra note 20, at 29. Suzanna Sherry has suggested that the republican revival shares common themes with feminist theory. See Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986).
The rise of republican legal scholarship is one part of a broader revival of interest in the republican tradition, popularized in the best-seller Habits of the Heart. R. BELLAH, R. MADSEN, W. SULLIVAN, A. SWIDLER & S. TIPTON, HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985) [hereinafter HABITS OF THE HEART]. Influential works of political theory in this vein include: B. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984); C. PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY (1970); and M. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982). For historical works uncovering the American republican tradition, see, for example, J. APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s (1984); E. FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR (1970); and G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969).
30. As Professor Michelman observes, "Republicanism is not a well-defined historical doctrine. As a 'tradition' in political thought, it figures less as canon than ethos, less as blueprint than as conceptual grid, less as settled institutional fact than as semantic field for normative debate and constructive imagination." Michelman, supra note 19, at 17 (footnote omitted). Within the republican tradition, it is easy to find strongly held views that few would find attractive today; for example, the ardent militarism of Machiavelli and the profoundly elitist view of the human telos suggested by Hannah Arendt. See H. ARENDT, supra note 16, at 121; N. MACHIAVELLI, The Discourses, in THE PRINCE AND THE DISCOURSES 443-62 (1950).
31. For a description of interest group pluralism, see supra notes 5-8 and accompanying text.
32. HABITS OF THE HEART, supra note 29, at 23. The authors give this example of a person who lives by the principle of negative freedom:
Thus Margaret Oldham, for example, sets great store on becoming an autonomous person, responsible for her own life, and she recognizes that other people, like herself, are free to have their own values and to lead their lives the way they choose. But then, by the same token, if she doesn't like what they do or the way they live, her only right is the right to walk away. In some sense, for her, freedom to be left alone is a freedom that implies being alone.
Id.
33. Id. at 24.
34. Pitkin, Justice: On Relating Private and Public, 9 POL. THEORY 327, 344 (1981); see also M. SANDEL, supra note 29, at 150-51. Thus, the carriers of the republican tradition today are civic volunteers and social movement activists. See HABITS OF THE HEART, supra note 29, at 51. In Rousseau's classic statement of positive freedom, moral liberty "alone makes [man] truly master of himself; for the mere impulse of appetite is slavery, while obedience to a law which we prescribe to ourselves is liberty." J. ROUSSEAU, supra note 17, at 19 (emphasis added).
35. See Michelman, supra note 19, at 19; Sunstein, Interest Groups, supra note 20, at 31. Rousseau warned that as "soon as public service ceases to be the chief business of the citizens," the fall of the State is not far off. J. ROUSSEAU, supra note 17, at 93.
36. See J. ROUSSEAU, A Discourse on Political Economy, in THE SOCIAL CONTRACT AND DISCOURSES, supra note 17, at 306-07; see also HABITS OF THE HEART, supra note 29, at 25-26; Michelman, supra note 19, at 19-20.
37. B. BARBER, supra note 29, at 118. Thus, Michelman holds that republicanism loses its attractiveness as an alternative to pluralism if it depends on the assumption of a human telos, the realization of which takes precedence over the individual's freedom to choose her own good life. See Michelman, supra note 19, at 22.
38. The republican and liberal traditions have been intertwined since their inceptions, and there is no reason other than abstract conceptual consistency for insisting that they be surgically separated now. See, e.g., M. TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 4 n.8 (1988) (noting that although contemporary scholars have insisted that the framers world-view was either one of liberalism or republicanism, in reality, the framers "almost certainly had not sorted out the theories in the way that later authors have"); cf. Fallon, What is Republicanism, and Is It Worth Reviving?, 102 HARV. L. REV. 1695, 1730-31 (1989) (noting overlaps between liberalism and the new republicanism). This Article retains the liberal concept of rights, and thus falls in the camp that C. Edwin Baker calls "republican liberalism." Baker, Republican Liberalism: Liberal Rights and Republican Politics, 41 U. FLA. L. REV. 491, 493 (1989).
39. Pitkin, Representation, in POLITICAL INNOVATION AND CONCEPTUAL CHANGE 132, 150 (T. Ball, J. Farr & R. Hanson eds. 1989). Rousseau put the proposition more starkly: "[T]he moment a people allows itself to be represented, it is no longer free: it no longer exists." J. ROUSSEAU, supra note 17, at 96.
40. Pitkin, supra note 34, at 347; see also B. BARBER, supra note 29, at 235-37; C. PATEMAN, supra note 29, at 25.
41. J. ROUSSEAU, supra note 17, at 93; see also infra text accompanying notes 173-76.
42. B. BARBER, supra note 29, at 108-09.
43. See supra note 17.
44. See Michelman, supra note 19, at 74-75; Sunstein, Interest Groups, supra note 20, at 69-75.
45. Michelman, supra note 19, at 75.
46. Michelman acknowledges the anti-democratic difficulty and limits his claim to revealing "optimistic possibilities." See id. at 74.
47. Id. (quoting J. ELY, supra note 8, at 59 & n. **).
48. Id.
49. See id. at 74-75.
50. Id. at 75.
51. Id.
52. Id.
53. See, e.g., Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 YALE L.J. 221, 310-11 (1973) (suggesting that conventional morality should dictate the proper bounds of judicial review).
54. See, e.g., Wolf v. Colorado, 338 U.S. 25, 28-32 (1949) (Frankfurter, J.) (relying on the historical treatment of evidence in refusing to apply the federal exclusionary rule to the states).
55. See infra notes 276-375 and accompanying text.
56. See A. BLAUSTEIN & R. MERSKY, THE FIRST ONE HUNDRED JUSTICES 55-56, 60 (1978); Brest, Who Decides?, 58 S. CAL. L. REV. 661, 667-69 (1985).
57. J. ELY, supra note 8, at 59 n.**.
58. See Michelman, Law's Republic, 97 YALE L.J. 1493, 1529 (1988).
59. See id. at 1530.
60. Id. at 1529.
61. See Minow, supra note 19, at 88-89.
62. 478 U.S. 186 (1986). Hardwick was charged with committing sodomy with a consenting adult in his bedroom. A five-member majority rejected Hardwick's claim that his constitutional right of privacy had been infringed. See id. at 190. The dissenters argued that the state had violated Hardwick's "right to be let alone." Id. at 199 (Blackmun, J., dissenting).
63. Michelman, supra note 58, at 1535 (footnotes omitted).
64. For a more skeptical view of Michelman's attempt to give the Court a process-enhancing role, see Abrams, Law's Republicanism, 97 YALE L.J. 1591, 1597-98 (1988).
65. See Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 9-16 (1969).
66. See Abrams, supra note 64, at 1603 ("In their distinctive ways, both Michelman and Sunstein redirect our attention to the activities of a narrower citizenry: members of the judiciary."); Bell & Bansal, The Republican Revival and Racial Politics, 97 YALE L.J. 1609, 1620 (1988) ("[T]he current interest in civic republicanism may be a passing fashion for those with the luxury to revel in the life of the mind . . . ."); Brest, Further Beyond the Republican Revival: Toward Radical Republicanism, 97 YALE L.J. 1623, 1625 (1988) ("[I]t is at least ironic that much of the legal scholarship of the republican revival, rather than working to promote participation and discourse . . . is as court-centered as the pluralist scholarship from which it distinguishes itself."); Epstein, Modern Republicanism: Or The Flight From Substance, 97 YALE L.J. 1633, 1642 (1988) ("The cynic might well say that both Michelman and Sunstein applaud republicanism because it gives skilled academics a comparative advantage: this is the public choice explanation as to why intellectuals prefer politics to markets."); Powell, Reviving Republicanism, 97 YALE L.J. 1703, 1708 (1988) (suggesting that Sunstein's proposals reflect assumptions that "contradict a belief in participatory or 'strong' democracy: a distrust in at least the wisdom of the citizen body generally, and a corresponding confidence that a select and autonomous body of representatives are more likely to make intelligent and virtuous decisions for the public good than is the public itself." (footnotes omitted)).
67. See Michelman, supra note 58, at 1531; Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1578 (1988).
68. On the elitist republicanism of The Federalist, see Sunstein, Interest Groups, supra note 20, at 38-45; see also infra text accompanying notes 252-55. For some characteristic Rousseauian statements on the necessity for popular participation, see supra notes 34-35; text accompanying note 41. For more on this aspect of Rousseau's thought, see C. PATEMAN, supra note 29, at 22-27. A thorough and thought-provoking summary of Jefferson's views may be found in R. MATTHEWS, THE RADICAL POLITICS OF THOMAS JEFFERSON: A REVISIONIST VIEW 77-95 (1984).
69. See Cover, Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 46-53 (1983); Sullivan, Rainbow Republicanism, 97 YALE L.J. 1713, 1716-21 (1988).
70. For essays that make this contribution while leaving the possibility of nationwide self-government ambiguous, see, e.g., Baker, The Process of Change and the Liberty Theory of the First Amendment, 55 S. CAL. L. REV. 293 (1981); Garet, Communality and Existence: The Rights of Groups, 56 S. CAL. L. REV. 1001 (1983); Soifer, Toward a Generalized Notion of the Right to Form or Join an Association: An Essay for Tom Emerson, 38 CASE W.L. REV. 641 (1988).
71. See M. TUSHNET, supra note 38, at 155. Cover asserts optimistically that conflict among groups with competing normative commitments will be muted spontaneously by the competing norms themselves, which limit the situations in which open conflict is justified. See Cover, supra note 69, at 50.
72. As Benjamin Barber has pointed out, institutions of self-government "should be realistic and workable. For all practical purposes, this means that they ought to be a product of actual political experience." B. BARBER, supra note 29, at 262.
73. See Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984).
74. Id. at 1034.
75. See id. at 1033-34.
76. See id. at 1028-30, 1034-35.
77. See id. at 1051-52, 1058.
78. See id. at 1040-41.
79. Id. at 1042.
80. Id. at 1043.
81. What distinguishes Ackerman's three constitutional moments from other participatory periods is the relative coherence of their outcomes at the level of constitutional lawmaking. The first two produced constitutional texts, and the third, the New Deal, produced a focused showdown between the popular movement for economic regulation and the Supreme Court's free market activism. Thus, it is not true that¾as Mark Tushnet has charged¾there is no logic behind Ackerman's three moments other than that he approved of their results. See M. TUSHNET, supra note 38, at 25.
82. See A. SCHLESINGER, JR., THE CYCLES OF AMERICAN HISTORY 24-26 (1986); A. SCHLESINGER, SR., PATHS TO THE PRESENT 80-84 (1949). Albert O. Hirschman made the point more generally for western capitalist countries. See A. HIRSCHMAN, SHIFTING INVOLVEMENTS: PRIVATE INTEREST AND PUBLIC ACTION 3-8 (1982). For a recent statement, see K. PHILLIPS, THE POLITICS OF RICH AND POOR xx (1990).
83. See A. HIRSCHMAN, supra note 82, at 92-102; A. SCHLESINGER, JR., supra note 82, at 28.
84. Arthur Schlesinger, Jr. embraces all seven, characterizing swings between private and public periods as generation-driven; others focus on varying subsets, with different theories to explain the shifts between periods. See A. SCHLESINGER, JR., supra note 82, at 23-25, 31-34.
85. See Key, A Theory of Critical Elections, 17 J. POL. 3, 16 (1955). Key's observations served as the starting point for Walter Dean Burnham's influential theory of critical elections. See W. BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS OF AMERICAN POLITICS (1970).
86. See S. HUNTINGTON, AMERICAN POLITICS: THE PROMISE OF DISHARMONY 105 (1981).
87. Id.
88. Id. at 180.
89. See id. at 4, 85.
90. See id. at 93-97.
91. Id. at 97-99.
92. See id. at 116-17, 198.
93. Huntington also omits the era of Civil War and Reconstruction, unfortunately without explanation. This omission is, however, less of a problem because the occurrence of full-scale warfare mutes the significance of direct citizen participation. Moreover, Huntington implies in an aside that he views the abolitionist movement as a creedal movement. See id. at 98.
94. Id. at 90-91.
95. See Forbath, The Shaping of the American Labor Movement, 102 HARV. L. REV. 1109, 1132-48, 1237-48 (1989).
96. See J. LANDIS, THE ADMINISTRATIVE PROCESS 33-34 (1938).
97. Fraser, The Labor Question, in THE RISE AND FALL OF THE NEW DEAL ORDER 55, 55 (S. Fraser & G. Gerstle eds. 1989).
98. See Casebeer, Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act, 42 U. MIAMI L. REV. 285, 295-96 (1987).
99. See 78 CONG. REC. 12,044 (1934) (Sen. Wagner). Representative William Connery, who introduced the Wagner Act in the House, proclaimed that the right to strike "is not a right that comes from Congress, but is a divine right which comes from the Almighty God." 79 CONG. REC. 9730 (1935).
100. See F. PIVEN & R. CLOWARD, POOR PEOPLE'S MOVEMENTS 129-33 (1977); Goldfield, Worker Insurgency, Radical Organization, and New Deal Labor Legislation, 83 AM. POL. SCI. REV. 1257, 1270-73 (1989). As always, the attribution of social causation is open to challenge. The main evidence offered to disprove a causal link between worker protest and the Wagner Act is the decline in strike activity between the 1934 strike wave, which included several successful general strikes, and the enactment of the Wagner Act in 1935. See Skocpol, Political Response to Capitalist Crisis: Neo-Marxist Theories of the State and the Case of the New Deal, 10 POL. & SOC'Y 155, 187-89 (1980). But as Professor Hyde points out,
it seems highly reductionist to suppose that month-by-month levels of unrest would alone, or even importantly, determine the timing of the law-making process. Legislation could still be said to respond to unrest, particularly if some significant unrest in the near future appeared likely throughout the period, as was true in 1935.
Hyde, A Theory of Labor Legislation, 38 BUFFALO L. REV. 383, 437 (1990). Other arguments are discussed and refuted in Goldfield, supra, at 1259-76.
101. The Industrial War, FORTUNE, Nov. 1937, at 106, 156.
102. See S. HUNTINGTON, supra note 86, at 91.
103. See id. at 106, 181.
104. See, e.g., Ferguson, Industrial Conflict and the Coming of the New Deal: The Triumph of Multinational Liberalism in America, in THE RISE AND FALL OF THE NEW DEAL ORDER, supra note 97, at 3, 19-24 (discussing Franklin Roosevelt's political alliances with big business during the New Deal).
105. Although the focus here is on groups that are disempowered in interest group bargaining, it seems that even business groups¾the perennial winners in interest group politics¾practice a more republican form of politics during periods of heightened struggle. See Martin, Constructed Interests and Elite Social Movements: Tax Reform in 1986, at 4-17 (1990) (unpublished paper on file with the author).
106. On the divergence of the republican revival from classical republicanism, see supra notes 37-38 and accompanying text.
107. The historical distinction between republican moments and liberal politics-as-normal parallels the sociological distinction between social movements and interest groups. Social movements typically employ extra-institutional direct action tactics, while interest groups rely primarily on routinized lobbying relationships with public officials. See D. MCADAM, POLITICAL PROCESS AND THE DEVELOPMENT OF BLACK INSURGENCY 1930-1970, at 24-25 (1982); Eder, The "New Social Movements": Moral Crusades, Political Pressure Groups, or Social Movements?, 52 SOC. RES. 869, 884-85 (1985).
Social movements tend to be informally organized and participatory; interest groups are usually bureaucratized and hierarchical. See McCarthy & Zald, Resource Mobilization and Social Movements: A Partial Theory, in SOCIAL MOVEMENTS IN AN ORGANIZATIONAL SOCIETY 15, 20-25 (M. Zald & J. McCarthy eds. 1987). While social movements seek to implement moral principles, interest groups simply demand more for their members. See Eder, supra, at 885. Social movements advocate basic change; interest groups focus on incremental gains. See, e,g., R. HEBERLE, SOCIAL MOVEMENTS 9 (1951) ("A pressure group is distinguished from a genuine social movement partly by the limitedness of its goal¾it does not aim at a general change in the social order"); C. KING, SOCIAL MOVEMENTS IN THE UNITED STATES 27 (1956) (stating that a social movement is "a group venture extending beyond a local community or a single event and involving a systematic effort to inaugurate changes in thought, behavior, and social relationships"); K. LANG & G. LANG, COLLECTIVE DYNAMICS 490 (1961) (explaining that social movements pursue "an objective that affects and shapes the social order in some fundamental aspect"); Blumer, Collective Behavior, in PRINCIPLES OF SOCIOLOGY 167, 169 (A. Lee ed. 1951) (describing social movements as "collective enterprises to establish a new order of life").
The distinction is not, of course, rigid over time. Social movements are often institutionalized into interest groups (for example, the late 19th century labor movement produced the American Federation of Labor) and, conversely, new social movements may arise within established interest groups (for example, the rise of the industrial union movement within the AFL).
108. On the Revolutionary era, see G. WOOD, supra note 29, at 3-7, 319-28 (describing the period as one of intense and widespread debate over fundamentals, with organs of direct popular power often displacing representative institutions). On the New Deal, see supra text accompanying notes 93-101. For a depiction of the 1960s as embodying all of the elements of republican moments, see S. HUNTINGTON, supra note 86, at 167-220.
109. For depictions of these periods as times of intense public involvement, see L. BANNING, THE JEFFERSONIAN PERSUASION (1978); E. FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863-1877, at 60-68, 100-23, 278-79, 281-91, 307-33 (1988); L. GOODWYN, DEMOCRATIC PROMISE: THE POPULIST MOVEMENT IN AMERICA 523-55 (1976); R. REMINI, THE REVOLUTIONARY AGE OF ANDREW JACKSON 147-51 (1976). I consider the Jeffersonian and Jacksonian moments to be less clear examples because party organization and electoral campaigning had not yet been coopted as instruments of interest-group politics-as-normal, and thus were available for use by reformers without the necessity of first building a movement through extra-electoral means. The operation of popular republican politics during the era of Civil War and Reconstruction was overshadowed by the politics of war and occupation. The populist moment was, in a sense, a failed republican moment. Although the labor and populist movements attempted to practice popular republican politics, their efforts were truncated when the major strikes of the era were crushed by military force.
110. For example, the Revolutionary movement grew out of single-issue campaigns against British taxation schemes. The populist movement grew out of local farmers' alliances. The civil rights movement built on boycotts and protests that were initiated at the local level.
111. I am indebted to Aviam Soifer for asking this question so forcefully that I felt compelled to attempt an answer.
112. See F. PIVEN & R. CLOWARD, WHY AMERICANS DON'T VOTE 160-62 (1988).
113. As described by David Chalmers, the main function of night riding was "to destroy the basis of Negro political effectiveness by driving out its leaders, white and black." D. CHALMERS, HOODED AMERICANISM: THE HISTORY OF THE KU KLUX KLAN 14 (1987). In some areas, the Klan's tactics of torture, murder, and violent intimidation virtually eliminated the Republican vote. See id. at 15-16; see also E. FONER, supra note 109, at 425-26 (observing that, in effect, "the klan was a military force serving the interests of the Democratic party").
114. When socialists attempted to hold a nationwide series of celebrations on May Day in 1919, "[w]herever there were celebrations, there were also violent attacks on the Socialists." AMERICAN VIOLENCE: A DOCUMENTARY HISTORY 351 (R. Hofstadter & M. Wallace eds. 1970). A mob in Weirton, West Virginia forced 118 striking immigrants to kiss the American flag. See M. LEVIN, POLITICAL HYSTERIA IN AMERICA 28 (1971). These incidents were typical of a wide-ranging outburst of anti-striker and anti-radical violence. See R. MURRAY, RED SCARE: A STUDY OF NATIONAL HYSTERIA, 1919-1920, at 30, 180-89 (1955). The most famous instance of government repression occurred on the night of January 2, 1920, when federal officers rounded up more than 4,000 alleged radicals in 23 states. A blue-ribbon group of twelve lawyers including Roscoe Pound, Felix Frankfurter, and Zachariah Chaffee subsequently issued a report condemning the raids for gross due process violations. See M. LEVIN, supra, at 57-58.
115. I am using the terms "right" and "left" as follows: right movements tend to be protective of established groups and elites, while left movements tend to advance the claims of hitherto excluded or disempowered groups.
116. By invoking the substance-process distinction, I do not mean to claim that the construct is substantively neutral. There simply is no such thing as a substantively neutral process. See L. TRIBE, CONSTITUTIONAL CHOICES 28 (1985); Parker, supra note 9, at 236. The idea of republican moments embodies a left bias because it emphasizes widespread participation and extra-institutional forms of popular power. During republican moments, the out-groups tend to be more effective politically than during periods of politics-as-normal. Nevertheless, the defining characteristics are all process-based. It is quite possible for a conservative to recognize that rights of protest are likely to strengthen her political opponents, and yet to support those rights as essential to democracy. Conversely (and perhaps more often in practice) liberals may understand that their constituents benefit from rights of protest and yet oppose such rights in practice because they would rather resolve issues in the more peaceful and controllable context of elite bargaining.
117. R. HEBERLE, supra note 107, at 417. Heberle criticizes this view as "partisan abuse of psychopathological categories." Id. Perhaps the most famous depiction of social movements as pathological phenomena is found in E. HOFFER, THE TRUE BELIEVER (1951). More recently social scientists have tended to acknowledge that social movements can perform salutary functions in promoting change and rectifying power imbalances. See Walker & Mendlovitz, Peace, Politics and Contemporary Social Movements, in TOWARDS A JUST WORLD PEACE: PERSPECTIVES FROM SOCIAL MOVEMENTS 3, 10-11 (S. Mendlovitz & R. Walker eds. 1987).
118. See M. HAYES, LOBBYISTS AND LEGISLATORS: A THEORY OF POLITICAL MARKETS 69-70 (1981); M. OLSON, supra note 15, at 26. Olson explains that the rational voter will weigh the costs of obtaining information against the benefit she will receive from a correct choice multiplied by the probability that her vote will be decisive to the outcome. Since the likelihood that an election will be decided by one vote is infinitesimal, voters have little incentive to inform themselves. See id. at 26.
119. Finkel, Muller & Opp, Personal Influence, Collective Rationality, and Mass Political Action, 83 AM. POL. SCI. REV. 885, 886, 900-01 (1989) (statistical study of protesters in Germany concluding that they engage in collective action because they believe either (1) that their individual participation makes a difference, or (2) that they are part of a group of people who are willing to engage in protest if enough others are willing to do the same).
120. Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 YALE L.J. 999, 1022-23 (1989) (describing the sentiment among African-Americans in Montgomery after African-Americans demonstrated surprisingly strong solidarity in the bus boycott of 1955-56).
121. A. HIRSCHMAN, supra note 82, at 86.
122. In Olson's view, there is one major exception to the rule of rational ignorance: when information is fascinating or entertaining in itself, citizens may make the effort to acquire it for those reasons. See M. OLSON, supra note 15, at 26. The prime examples are sweeping statements, picturesque protests, and lively demonstrations¾all hallmarks of republican moments. See id. at 27.
123. On the role of protest in mobilizing popular constituencies, see Lipsky, Protest as a Political Resource, in POWER AND CHANGE IN THE UNITED STATES: EMPIRICAL FINDINGS AND THEIR IMPLICATIONS 161 (K. Dolbeare ed. 1969).
124. See, e.g., Feuer, Participatory Democracy: Lenin Updated, in PARTICIPATORY DEMOCRACY 57, 61 (T. Cook & P. Morgan eds. 1971) (describing civil rights protests organized by the Student Nonviolent Coordinating Committee as "putschist" actions of a "small student elite").
125. There is one important exception to this generalization¾when a group uses direct popular power to suppress political activity by others. See supra text accompanying notes 113-14.
126. M. OLSON, supra note 15, at 8.
127. See D. BRAYBROOKE & C. LINDBLOM, STRATEGY OF DECISION: POLICY EVALUATION AS A SOCIAL PROCESS 83-86 (1963); T. LOWI, THE END OF LIBERALISM: IDEOLOGY, POLICY, AND THE CRISIS OF PUBLIC AUTHORITY 60-61 (1969); D. YATES, BUREAUCRATIC DEMOCRACY: THE SEARCH FOR DEMOCRACY AND EFFICIENCY IN AMERICAN GOVERNMENT 103-05 (1982).
128. See D. TRUMAN, supra note 6, at 467-68. Many observers have noted the existence of "iron triangles" composed of a government agency, an interest group beneficiary of the agency, and the congressional committee charged with overseeing the agency. Once an iron triangle gains control over an area of policy, it may be virtually impossible to dislodge. See P. ARONSON, AMERICAN GOVERNMENT: STRATEGY AND CHOICE 491 (1981); D. YATES, supra note 127, at 165.
129. Walker, A Critique of the Elitist Theory of Democracy, 60 AM. POL. SCI. REV. 285, 292 (1966).
130. The classic statement of this disjuncture is the Marxist dichotomy between base and superstructure, with the development at the base driven by advances in productive forces. See K. MARX & F. ENGELS, THE GERMAN IDEOLOGY 68-69 (R. Pascal ed. 1947). One need not, however, adopt a Marxist¾or even a progressive¾view of history to recognize that a stalemated state is likely to grow apart from the society it is attempting to govern.
131. See Burnham, Revitalization and Decay: Looking Toward the Third Century of American Electoral Politics, 38 J. POL., Aug. 1976, at 146, 149. Thus, direct popular involvement in agenda-setting may be "more important to the longrun stability of the system than electoral participation." R. COBB & C. ELDER, PARTICIPATION IN AMERICAN POLITICS: THE DYNAMICS OF AGENDA BUILDING 164 (1972).
132. For illustrations of the agenda-setting function of popular protest, see R. COBB & C. ELDER, supra note 131, at 64-71.
133. W. BURNHAM, supra note 85, at 10.
134. This diagram is a modification of one that appears in F. ALBERONI, MOVEMENT AND INSTITUTION 9 (1984). In Alberoni's depiction, Revolution takes the place of Republican Moment, and Forces of Production that of Civil Society.
135. See K. SCHLOZMAN & J. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 312-13 (1986). For a useful summary of the literature, see Farber & Frickey, supra note 11, at 906-07, 925.
136. See M. EDELMAN, THE SYMBOLIC USES OF POLITICS 35-36 (1964); M. OLSON, supra note 15, at 41; K. SCHLOZMAN & J. TIERNEY, supra note 135, at 66-87.
137. See M. HAYES, supra note 118, at 57-58.
138. See C. LINDBLOM, POLITICS AND MARKETS 172 (1977). The critics of this view have been reduced to arguing, in effect, that it is impossible to prove who is a winner in interest group politics. See Wilson, Democracy and the Corporation, WALL ST. J., Jan. 11, 1978, at 14, col. 4.
139. See H. KARIEL, THE DECLINE OF AMERICAN PLURALISM 68-69 (1961); G. MCCONNELL, PRIVATE POWER AND AMERICAN DEMOCRACY 355-57 (1966).
140. See D. HOERDER, CROWD ACTION IN REVOLUTIONARY MASSACHUSETTS 1765-1780, at 378-80 (1977); see also infra text accompanying notes 189-92 & 222-23.
141. For a portrayal of these constitutional conventions as organs of popular sovereignty, see D. RODGERS, supra note 6, at 92-101.
142. For an analysis of the temperance movement's saloon invasions as highly effective exercises of direct popular power, see Chused, Gendered Space, 42 FLA. L. REV. 125, 130-35 (1990). On the role of women in boycotts, see S. EVANS, BORN FOR LIBERTY: A HISTORY OF WOMEN IN AMERICA 48-50, 259 (1989) and J. JONES, LABOR OF LOVE, LABOR OF SORROW: BLACK WOMEN, WORK AND THE FAMILY, FROM SLAVERY TO THE PRESENT 215-16, 279-80 (1985).
143. See H. KARIEL, supra note 139, at 241-46.
144. For classic, if somewhat extreme, statements of this problem, see R. MICHELS, POLITICAL PARTIES 136-63 (1915); M. WEBER, The Social Psychology of the World Religions, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 267, 297-301 (H. Gerth & C. Mills trans. & eds. 1946). For a more recent treatment, see F. PIVEN & R. CLOWARD, POOR PEOPLE'S MOVEMENTS: WHY THEY SUCCEED, HOW THEY FAIL (1977).
145. The standard study is S. LIPSET, M. TROW & J. COLEMAN, UNION DEMOCRACY (1956).
146. Thus, for example, Grant McConnell has shown that the Farm Bureau came to act for only a small, highly organized segment of its membership. See G. MCCONNELL, THE DECLINE OF AGRARIAN DEMOCRACY 173-81 (1953). Similarly, relatively compact and economically powerful subgroups within unions, like the skilled trades in the United Auto Workers and the over-the-road truckers in the Teamsters Union, exercise disproportionate influence over their unions.
147. See supra note 144.
148. The classic account is found in I. BERNSTEIN, THE LEAN YEARS: A HISTORY OF THE AMERICAN WORKER 1920-1933 (1960).
149. See A. MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT: BLACK COMMUNITIES ORGANIZING FOR CHANGE 192, 216 (1984).
150. See E. PURCELL, THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE 197-217 (1973); D. RODGERS, supra note 6, at 209.
151. See S. LIPSET, POLITICAL MAN 87-126 (1981); D. TRUMAN, supra note 6, at 522.
152. The pluralist intellectuals tried to discourage ideological politics by declaring them impossible. America had, they proclaimed, moved beyond ideology to a pragmatic consensus. See D. BELL, THE END OF IDEOLOGY 393-407 (revised ed. 1962); S. LIPSET, supra note 151, at 439-56. For a more critical view of the consequences of consensus, see L. HARTZ, THE LIBERAL TRADITION IN AMERICA 302-09 (1955).
153. See R. DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT 261 (1967).
154. Some contend that this was the central significance of the reforms. See, e.g., G. KOLKO, THE TRIUMPH OF CONSERVATISM 285-87 (1963) (concerning the Populist-Progressive Era); Ferguson, supra note 104, at 3. A more accurate view holds, however, that corporate elements exercised considerable but by no means controlling influence over the ultimate direction of reform. On the New Deal, see Hawley, The Discovery and Study of a "Corporate Liberalism," 52 BUS. HIST. REV. 309, 314, 318 (1978); see also supra note 100 and accompanying text. On the Populist-Progressive era, see, e.g., Hovenkamp, Regulatory Conflict in the Gilded Age: Federalism and the Railroad Problem, 97 YALE L.J. 1017, 1027 (1988) (observing that although federal railroad regulation may have been enacted to promote railroad interests, state statutes were intended "to improve the economic welfare of resident farmers").
155. See T. LOWI, supra note 127, at 226-49; F. PIVEN & R. CLOWARD, REGULATING THE POOR 198, 272-76 (1971).
156. G. WOOD, supra note 29, at 6 (quoting contemporary observers).
157. See infra text accompanying notes 248-56.
158. See infra text accompanying notes 253-56.
159. See A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 22-27 (1948). For more recent arguments along these lines, see Bevier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 304-22 (1978); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 17-20 (1971).
160. See J. CHOPER, supra note 8, at 1-12; J. ELY, supra note 8, at 88-101.
161. The theory of republican moments thus adds support to constitutional theories that maintain a role for popular power. See, e.g., C.E. BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 108-24 (1989) (contending that the liberty theory of the first amendment provides the possibility for nonhierarchical noninstrumental means for radical democratic change); Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521 (suggesting that by protecting the flow of information, the first amendment enables the people to check government abuses); see also S. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE 96-100 (1990); Ackerman, supra note 73.
162. See Soifer, Protecting Civil Rights: A Critique of Raoul Berger's History, 54 N.Y.U. L. REV. 651, 654 (1979).
163. See Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History (Book Review), 37 STAN. L. REV. 795, 799-801 (1985). As John Phillip Reid observed, even legally untrained Whigs considered themselves fully capable of making legal judgments, which they frequently did in political discourse. See Reid, In a Defensive Rage: The Uses of the Mob, The Justification in Law, And the Coming of the American Revolution, 49 N.Y.U. L. REV. 1043, 1044 n.9 (1974).
164. 1 J. BURGH, POLITICAL DISQUISITIONS 6 (1774).
165. 2 J. TRENCHARD, CATO'S LETTERS 42-43 (1733) [hereinafter CATO'S LETTERS]; see also 3 CATO'S LETTERS, supra, at 21. Trenchard, however, took a dimmer view of crowd action than some of his Whig colleagues when he warned against "public Disturbances" because the consequences could not be foreseen. See 1 CATO'S LETTERS, supra, at 193.
166. J. PRIESTLY, LECTURES ON HISTORY AND GENERAL POLICY 340 (1788) (J. Rutt ed. 1826).
167. See P. GILJE, THE ROAD TO MOBOCRACY 8 (1987); P. MAIER, FROM RESISTANCE TO REVOLUTION: COLONIAL RADICALS AND THE DEVELOPMENT OF AMERICAN OPPOSITION TO BRITAIN, 1765-1776, at 42-43; Reid, supra note 163, at 1050-53.
168. 1 THE WRITINGS OF SAMUEL ADAMS 237 (H. Cushing ed. 1904).
169. Letter from John Adams to Abigail Adams (July 7, 1774), in 1 ADAMS FAMILY CORRESPONDENCE 130-31 (L. Butterfield ed. 1963), quoted in G. WOOD, supra note 29, at 321. Hamilton and Madison acknowledged the existence and legitimacy of the right of resistance in the Federalist Papers, with Hamilton going so far as to argue¾in an odd departure from his usual distrust of popular tumult¾that power should be centered in national rather than state government because popular resistance would have "infinitely better prospect of success" against national rulers than against those of an individual state. THE FEDERALIST NO. 28, supra note 5, at 180 (A. Hamilton); see also THE FEDERALIST NO. 46, supra note 5, at 298 (J. Madison) (stating that "ambitious encroachments of the federal government" would be met by organized resistance); THE FEDERALIST NO. 60, supra note 5, at 369 (A. Hamilton) (stating that an attempt by the federal government to make improper use of its power to regulate elections would cause "an immediate revolt of the great body of the people"). Violent remedies would not, however, be justified for mere "partial or occasional distempers of the State," for which the remedy was "a change of men." THE FEDERALIST NO. 21, supra note 5, at 140 (A. Hamilton). Indeed, one of the principal reasons for forming a strong national government was its utility in suppressing "partial commotions and insurrections . . . from the intrigues of an inconsiderable faction." THE FEDERALIST NO. 16, supra note 5, at 117 (A. Hamilton); see also THE FEDERALIST NO. 27, supra note 5, at 175 (A. Hamilton) (arguing that a strong national government would be more likely to discourage sedition than the state governments); THE FEDERALIST NO. 43, supra note 5, at 276-80 (J. Madison) (arguing that a national government will provide protection against domestic insurrections).
170. P. MAIER, supra note 167, at 23 (quoting Josiah Quincy). For additional contemporary statements, see id. at 22-24; P. GILJE, supra note 167, at 7-9.
171. Letter from Thomas Jefferson to James Madison (Jan. 30, 1787), in 11 JEFFERSON PAPERS, supra note 2, at 92, 93.
172. Id. Thus, rebellion was "a medicine necessary for the sound health of government." Id.
173. Letter from Thomas Jefferson to Edward Carrington (Jan. 16, 1787), in 11 JEFFERSON PAPERS, supra note 2, at 48, 49. Tumult thus served as "the only safeguard of the public liberty." Id.
174. Id.
175. Letter from Thomas Jefferson to William Stephens Smith (Nov. 13, 1787), in 12 JEFFERSON PAPERS, supra note 2, at 355-56.
176. See infra notes 117-55 and accompanying text.
177. See, e.g., Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 221-22 (1983) (noting that support for the right of resistance was one of the impulses behind the second amendment); Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 648-50 (1989) (observing that commentators from 1787 into the twentieth century have argued that an armed populace is necessary to prevent tyrannical acts by the government).
178. Cf. Paust, The Human Right to Participate in Armed Revolution and Related Forms of Social Violence: Testing the Limits of Permissibility, 32 EMORY L.J. 545, 545-47, 550-55 (1983) (arguing that the founders regarded the right of revolution as arising from natural law, and noting that the Declaration of Independence, the Declaration of the Causes and Necessity of Taking up Arms, and several state constitutions assert the right).
179. See P. MAIER, supra note 167, at 35, 40-41. The requirement of unlawfulness was not a technical, legal judgment. The Whigs recognized that the law was so "ambiguous, perplexed, and intricate" that the real question was whether the ruler had acted against the public good. A. SIDNEY, DISCOURSES CONCERNING GOVERNMENT 418 (London 3d ed. 1751), quoted in P. MAIER, supra note 167, at 37. For example, although the proposed constitution empowered Congress to regulate the "Times, Places and Manner" of holding elections for Senators and Representatives, U.S. CONST. art. I § 4, Hamilton argued that a congressional attempt to confine "the places of election to particular districts" thus "rendering it impracticable to the citizens at large to partake in the choice" would properly result in an "immediate revolt of the great body of the people, headed and directed by the State governments." THE FEDERALIST NO. 60, supra note 5, at 367 (A. Hamilton).
180. See P. MAIER, supra note 167, at 35-36; Paust, supra note 178, at 553-55; Reid, supra note 163, at 1050. In practice, this requirement meant something substantially less than unanimous support. It is estimated that up to 20 percent of the white population retained its loyalty to Britain throughout the revolution. See Smith, The American Loyalists: Notes on Their Organization and Numerical Strength, 25 WM. & MARY Q. 259, 269 (3d Ser. 1968). To this number must be added a substantial group that remained undecided.
181. See Conser, McCarthy & Toscano, The American Independence Movement, 1765-1775: A Decade of Nonviolent Struggles, in RESISTANCE, POLITICS, AND THE AMERICAN STRUGGLE FOR INDEPENDENCE, 1765-1775, at 3 (W. Conser, R. McCarthy, D. Toscano & G. Sharp eds. 1986); see also infra notes 189-92 and accompanying text.
182. See supra text accompanying notes 140-42. Republican moments are usually accompanied by violence as well. Typically, however, the impetus for serious violence comes from forces opposed to transformative social movements. As Gordon Wood has observed, for example, the contrast between the purportedly restrained American revolutionary mobs and the violent French ones was due not to any violent propensity of French mobs, but to the violence of the French government's reaction as compared to the relatively peaceful response of British and colonial authorities to American mobs. See Wood, A Note on Mobs in the American Revolution, 23 WM. & MARY Q. 635, 639-42 (3d Ser. 1966). See generally AMERICAN VIOLENCE: A DOCUMENTARY HISTORY (R. Hofstadter & M. Wallace eds. 1970) (collecting contemporary accounts of American uprisings from 1634 to 1968).
183. See NAACP v. Button, 371 U.S. 415, 429-30 (1963); J. NOWAK, R. ROTUNDA, & J. YOUNG, CONSTITUTIONAL LAW § 16.53, at 1004 (3d ed. 1986).
184. Declaration of Rights, 14 October 1774, Journal of the Proceedings of the First Congress Held at Philadelphia Sept. 5, 1774, at 62 (1774 & reprint 1974), reprinted in SOURCES OF OUR LIBERTIES: DOCUMENTARY ORIGINS OF INDIVIDUAL LIBERTIES IN THE UNITED STATES CONSTITUTION AND BILL OF RIGHTS 286, 288 (R. Perry ed. 1959) [hereinafter SOURCES] (emphasis added) ("Resolved . . . That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.").
185. According to Bernard Schwartz, the Declaration of the Continental Congress was the first authoritative document to assert the right of assembly. See B. SCHWARTZ, THE GREAT RIGHTS OF MANKIND: A HISTORY OF THE AMERICAN BILL OF RIGHTS 198 (1977). The English Bill of Rights guaranteed the right to petition but did not mention assembly. See Bill of Rights, 1688, 1 W. & M. ch. 2, § 5, reprinted in SOURCES, supra note 184, at 246 (stating "[t]hat it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.").
Those who argue that the right was recognized in English law rely not on any explicit declarations, but on the pattern of common law holdings and statutory restrictions. See Jarrett & Mund, The Right of Assembly, 9 N.Y.U. L.Q. REV. 1, 5-10 (1931). This is not, however, a legal right in the strong sense. What existed in England might be better described as the potential for an affirmative right of assembly to be implied from existing law. In 1781, the King's Bench declined an opportunity to imply such a right from the right of petition. See infra note 202.
186. See 1 J. REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 24-25 (1986).
187. Massachusetts Government Act, 14 Geo. 3, ch. 45, § 7 (1774).
188. Id.
189. See D. HOERDER, CROWD ACTION IN REVOLUTIONARY MASSACHUSETTS 1765-1780, at 115 (1977); P. MAIER, supra note 167, at 73-74; Conser, The Stamp Act Resistance, in RESISTANCE, POLITICS, AND THE AMERICAN STRUGGLE FOR INDEPENDENCE, 1765-1775, supra note 181, at 22, 31-37. I say "relatively" because nonimportation and nonconsumption were never entirely severed from violence in practice, and during some periods, violent enforcement of the boycott was common. See D. HOERDER, supra, at 204-15.
190. See D. HOERDER, supra note 189, at 206; P. MAIER, supra note 167, at 122.
191. See P. MAIER, supra note 167, at 122-23. The boycott also had serious consequences for many citizens who did not import themselves, but who were connected to industries related to the British trade. Tailors suffered because of the boycott of British cloth, and shipyard workers were hurt by the decline in ship-borne trade. See C. BRIDENBAUGH, CITIES IN REVOLT: URBAN LIFE IN AMERICA, 1743-1776, at 283 (1955).
192. See P. MAIER, supra note 167, at 126-27; Reid, supra note 163, at 1081.
193. As George Mason put it, the colonists had no alternative but to prevent "by all legal & peaceable Means in our Power (for we must avoid even the Appearance of Violence) the Importation of the enumerated goods." Letter from George Mason to Richard Henry Lee (June 7, 1770), in 1 PAPERS OF GEORGE MASON 1725-1792, at 116 (R. Rutland ed. 1970) [hereinafter MASON PAPERS]; see also D. HOERDER, supra note 189, at 115; P. MAIER, supra note 167, at 114. Nonimportation associations typically declared themselves to be lawful. See, e.g., Nonimportation Agreement of June 28, 1769, in THE LETTERS OF FREEMAN, ETC.: ESSAYS ON THE NONIMPORTATION MOVEMENT IN SOUTH CAROLINA 5, 5 (W. Drayton ed. 1771) (R. Weir ed. 1977) [hereinafter LETTERS OF FREEMAN] (describing nonimportation as a "loyal and vigorous" method); Virginia Nonimportation Association, in MASON PAPERS, supra, at 120, 121 (declaring it to be the duty of every citizen to prevent the ruin of his country "by every lawful means").
194. Pa. J., Supplement, Feb. 6, 1766, quoted in P. MAIER, supra note 167, at 72; see also, G. WOOD, supra note 29, at 312 (observing that it was the "right of assembly that justified the numerous associations and congresses that sprang up during the Stamp Act crisis").
195. J. DICKINSON, LETTERS FROM A FARMER IN PENNSYLVANIA TO THE INHABITANTS OF THE BRITISH COLONIES 31-35 (1903). Dickinson's writings were highly influential and, according to Benjamin Franklin, spoke the "general sentiments" of the American people at that time. See D. JACOBSON, JOHN DICKINSON AND THE REVOLUTION IN PENNSYLVANIA 1764-1776, at 57 (1965).
196. See Letter from Thomas Hutchinson to Hillsborough (Jan. 24, 1770), in 1 SPARKS MANUSCRIPTS, BRITISH PAPERS RELATING TO THE AMERICAN REVOLUTION 116 (handcopied papers located at the Houghton Library at Harvard University).
197. Letter from Thomas Hutchinson to Hillsborough (Oct. 20, 1769), in 3 SPARKS MANUSCRIPTS, PAPERS RELATING TO NEW ENGLAND 41.
198. According to Thomas Hutchinson, for "particular persons to forbear importing cannot be deemed criminal, but it is quite another thing for numbers to confederate together and compel others to join them, and all with an avowed design to force the legislature to repeal their acts." B. BAILYN, THE ORDEAL OF THOMAS HUTCHINSON 133 (1974) (quoting Hutchinson). William Henry Drayton likewise acknowledged that individuals might refrain from importing, but a "confederacy" for that purpose would unlawfully "oblige a man to act contrary to his inclination." Letter from Freeman (William Henry Drayton) to Libertas et Natali Solum (Oct. 12, 1769), in LETTERS OF FREEMAN, supra note 193, at 42, 47-48.
199. According to John Mackenzie, the "association assumes no other right" than the individual right to withhold patronage, and as for social ostracism, that was "a mere matter of opinion, which men will ever exercise, without entering into associations." Not satisfied with this formalistic argument, Mackenzie acknowledged that,
[t]o be sure, the greater the numbers, the greater the weight. That it is an hardship, men should be constrained to enter into such measures, no body will deny: but let us put the saddle upon the right horse; Those who have rendered such measures necessary, are answerable for the uncommon roads they force mankind to take.
Letter by A Member of the General Committee (John Mackenzie) (Sept. 28, 1769), in LETTERS OF FREEMAN, supra note 193, at 33, 38. See generally P. MAIER, supra note 167, at 130-31 (discussing the attempts of the movement's leaders to avoid the taint of illegality).
At times, the justification of nonimportation activities shaded into invocations of the right of resistance. The Americans had been, according to Christopher Gadsden, "reduced to a necessity of associating together, in order to discover, and unite in, some common means, for the recovery and preservation of their rights and liberties." Letter from Christopher Gadsden to Peter Timothy 7 (Oct. 26, 1769), in LETTERS OF FREEMAN, supra note 193, at 52, 67.
200. In arguing that a confederacy was unlawful, see supra note 198, Drayton was relying on language in the Poulterers' Case, 77 ENG. REP. 813, 815 (K.B. 1611). This was, however, vague dictum; the case involved a conspiracy to obtain the arrest and conviction of an innocent person. Maier found no case decided prior to or contemporaneously with the American Revolution in which a peaceful boycott was held to be an unlawful conspiracy. See P. MAIER, supra note 167, at 132.
201. Letter from Christopher Gadsden to Peter Timothy (Oct. 26, 1769), in LETTERS OF FREEMAN, supra note 193, at 57, 67 (emphasis omitted); see also supra notes 193-97 and accompanying text.
202. See An Act Against Tumults and Disorders Upon Pretence of Preparing or Presenting Public Petitions or Other Addresses to His Majesty or the Parliament, 13 Car. 2, st. 1, ch. 5. The Act limited to 20 the number of people who could sign a petition to the King, and to 10 the number who could approach the King or Parliament "upon pretence of presenting or delivering any petition." Id. In the case of Lord George Gordon, Lord Mansfield ruled that the English Bill of Rights, which guaranteed the "right of the subjects to petition the King," had not repealed this law. The King v. Lord George Gordon, 99 ENG. REP. 372, 374 (K.B. 1781).
203. See An Act for Preventing Tumults and Riotous Assemblies, and for the More Speedy and Effectual¾Punishing the Rioters, 1 Geo. 2, ch. 5 [hereinafter English Riot Act of 1714]. This law authorized the violent suppression of any group of 12 or more people who remained "unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace" for more than one hour after being read the riot act. Id.
204. See, e.g., An Act for preventing and suppressing of Riots, Routs, and unlawful Assemblies, Acts 1750, ch. 12 [hereinafter Massachusetts Riot Act of 1750]; An Act for Preventing Tumults and Riotous Assemblies and for the More Speedy and Effectual Punishing the Rioters, Acts 1764, reprinted in 6 STATUTES AT LARGE OF PENNSYLVANIA 325-28 (1899) [hereinafter Pennsylvania Riot Act of 1764]. The other colonies to pass riot acts were Connecticut (1722), New Jersey (1747), New York (1774), and North Carolina (1771). See P. MAIER, supra note 167, at 24-25.
205. See, e.g., Massachusetts Riot Act of 1750, supra note 204 (participants must be "unlawfully, riotously or tumultuously assembled"); Pennsylvania Riot Act of 1764, supra note 204, at 325 (participants must be "unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace"). This general language was drawn from the English Riot Act of 1714, supra note 203, at 1 Geo. 2, ch. 5, § 1. The offense of unlawful assembly required only a purpose "to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein." 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *146.
206. See supra note 205.
207. Pennsylvania imposed the death penalty. See Pennsylvania Riot Act of 1764, supra note 204, at 326. More typically, Massachusetts called for 39 or 40 stripes across the naked back in addition to imprisonment and fines or property forfeitures. See Massachusetts Riot Act of 1750, supra note 204. These penalties were considered brutal even at the time. See C. BRIDENBAUGH, supra note 191, at 117.
208. See D. FOX, YANKEES AND YORKERS 169 (1940).
209. See 7 DOCUMENTS RELATING TO THE COLONIAL HISTORY OF THE STATE OF NEW JERSEY 117-304 (1883).
210. See H. LEFLER & W. POWELL, COLONIAL NORTH CAROLINA: A HISTORY 234-37 (1973).
211. See J. KELLEY, PENNSYLVANIA: THE COLONIAL YEARS 1681-1776, at 494-95 (1980).
212. See R. TAYLOR, COLONIAL CONNECTICUT: A HISTORY 175 (1979).
213. See, e.g., Massachusetts Riot Act of 1750, supra note 204 (3 years); Pennsylvania Riot Act of 1764, supra note 204 (1 year from publication and then to the end of the next sitting assembly). The one exception was the oldest of the lot, the Connecticut Riot Act of 1722. See infra note 215.
214. See C. BRIDENBAUGH, supra note 191, at 117 (noting that the Massachusetts Riot Act "did not go down well with the bulk of Bostonians").
215. Although the law had expired several years before, the legislature acted to remove any doubt as to whether prosecutions could be brought based on incidents prior to its expiration. See Acts 1778, ch. 11, reprinted in 1 LAWS OF THE STATE OF NEW YORK 20 (1886). Connecticut, on the other hand, continued its uniquely conservative course by reaffirming its law in 1776. See 15 THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 283 (C. Hoadly ed. 1890).
216. JOURNALS OF THE HOUSE OF REPRESENTATIVES OF MASSACHUSETTS 1770, at 178 (1977). Instead of suppressing the rioters, the House recommended redressing their grievances, claiming that it "may justly be said of the People of this Province, that they seldom if ever have assembled in a tumultuous Manner, unless they have been oppressed." Id.
217. See B. BAILYN, supra note 198, at 133; P. MAIER, supra note 167, at 133.
218. See supra notes 184-87 and accompanying text.
219. See Upton, Proceedings of ye Body respecting the Tea, 22 WM. & MARY Q. 287, 292-93 (1965).
220. 458 U.S. 886 (1982). This and other boycott cases are discussed infra notes 289-335 and accompanying text.
221. On the radical significance of this advance, see G. WOOD, supra note 29, at 382-84; Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1432-37 (1987).
222. See B. LABAREE, THE BOSTON TEA PARTY 98-99 (1964); P. MAIER, supra note 167, at 118.
223. The term "convention" already had a long and diverse history, but in all contexts it referred to a body which met "to exercise or influence power outside the established structure of government." THE POPULAR SOURCES OF POLITICAL AUTHORITY: DOCUMENTS ON THE MASSACHUSETTS CONSTITUTION OF 1780, at 5 (O. Handlin & M. Handlin eds. 1966) [hereinafter POPULAR SOURCES]; G. WOOD, supra note 29, at 306-10. Despite their use of delegates, these conventions qualify as exercises of "direct" popular power because they operated outside the structure of representative government in close contact with the popular movements that spawned them. Delegates were selected at a popular assembly, charged with specified missions, and dispatched to a single convention after which they were expected to report back to their constituents. For an analysis of the democratic advantages of the convention form, see Amar, supra note 221, at 1459 n.147; see also G. WOOD, supra note 29, at 323-24; infra notes 234-35 and accompanying text.
224. G. WOOD, supra note 29, at 314 (quoting a Tory tract).
225. PROCEEDINGS AND DEBATES OF THE BRITISH PARLIAMENTS RESPECTING NORTH AMERICA 1754-1783, at 149 (R. Simmons & P. Thomas eds. 1985) (Pownall); see also id. at 151-52 (Lord North); id. at 279-80 (statement of Mr. R. Rigby).
226. Id. at 149 (Pownall).
227. Id. at 151 (Lord Germain).
228. See Journal of Stamp Act Congress, reprinted in C. WESLAGER, THE STAMP ACT CONGRESS 181, 202 (1976); see also G. WOOD, supra note 29, at 312.
229. See G. WOOD, supra note 29, at 321-22.
230. See W. POWELL, NORTH CAROLINA THROUGH FOUR CENTURIES 173 (1989).
231. G. WOOD, supra note 29, at 324.
232. Id. at 326 (quoting a contemporary observer); see also id. at 323-28.
233. See D. SZATMARY, SHAYS' REBELLION: THE MAKING OF AN AGRARIAN INSURRECTION 38-40 (1980).
234. M. STARKEY, A LITTLE REBELLION 11 (1955); see also Pole, Shays's Rebellion: A Political Interpretation, in THE REINTERPRETATION OF THE AMERICAN REVOLUTION 1763-1789, at 419-20, 424-25 (J. Greene ed. 1968).
235. See POPULAR SOURCES, supra note 223, at 35-39; M. STARKEY, supra note 234, at 11.
236. See V. HALL, POLITICS WITHOUT PARTIES 204, 209 (1972); D. SZATMARY, supra note 233, at 39-40. For a contemporary account, see G. MINOT, THE HISTORY OF THE INSURRECTIONS IN MASSACHUSETTS 24-42 (1788) (2d ed. 1810).
237. See R. Feer, Shays' Rebellion 177 (Ph.D. thesis, Harvard Univ. 1958); see also G. MINOT, supra note 236, at 33-37 (describing the proceeding of a convention); M. STARKEY, supra note 234, at 13 (same). In this, the conventions followed the practice of the earlier nonimportation associations. See supra note 194 and accompanying text.
238. See R. Feer, supra note 237, at 91 (quoting a statement of the Boston Town Meeting, Apr. 5, 1784); see also R. TAYLOR, WESTERN MASSACHUSETTS IN THE REVOLUTION 63, 141 (1954); G. WOOD, supra note 29, at 327. Similar arguments had been made during the convention movement leading up to the enactment of the Massachusetts Constitution of 1780. See Response of the Worcester Committee of Correspondence, Oct. 8, 1778, in POPULAR SOURCES, supra note 223, at 369, 372.
239. R. Feer, supra note 237, at 91-92 (quoting a statement of the Cambridge Town Meeting, July 24, 1786).
240. MASS. CONST. of 1780, art. 19, reprinted in POPULAR SOURCES, supra note 223, at 441.
241. See D. SZATMARY, supra note 233, at 39-40; R. Feer, supra note 237, at 90 (citing contemporary periodicals). In his contemporary account, George Richards Minot stated simply that the conventions were founded on the Massachusetts Constitution's guarantee of the right of assembly. See G. MINOT, supra note 236, at 24.
242. See G. WOOD, supra note 29, at 326; R. Feer, supra note 237, at 90.
243. The most detailed account is in R. Feer, supra note 237, at 180-210, 236-37.
244. See id. at 229-32.
245. See An Act to prevent Routs, Riots, and tumultuous Assemblies, and the evil Consequences thereof, Acts 1786, ch. 8. This law prohibited "any persons to the number of twelve, or more, being armed with clubs, or other weapons; or . . . any number of persons, consisting of thirty or more" from remaining "unlawfully, routously, riotously or tumultuously assembled" more than one hour after the reading of the riot act. Id. Unlike most of its colonial predecessors, this law had no termination date.
246. See 1786 Acts, ch. 41, Nov. 10, 1786. This law expired by its own terms on July 1, 1787.
247. See Vermont Riot Act of 1787, reprinted in 14 STATE PAPERS OF VERMONT: LAWS OF VERMONT 265-66, 281-84 (J. Williams ed. 1966); Virginia Riot Act of 1786, reprinted in 2 JEFFERSON PAPERS, supra note 2, at 517-19.
248. G. WOOD, supra note 29, at 397.
249. Id. at 327.
250. See D. SZATMARY, supra note 233, at 123-28.
251. See id. at 127.
252. See supra note 169.
253. THE FEDERALIST NO. 6, supra note 5, at 56 (A. Hamilton). Similarly, in response to Jefferson's suggestion that the people should be consulted directly in the event of a conflict between the branches of government, Madison warned against "disturbing the public tranquillity by interesting too strongly the public passions." THE FEDERALIST NO. 49, supra note 5, at 315 (J. Madison).
254. THE FEDERALIST NO. 63, supra note 5, at 387 (A. Hamilton or J. Madison) (emphasis omitted).
255. See THE FEDERALIST NO. 10, supra note 5, at 82 (J. Madison). For a well-documented portrayal of the debate between federalists and anti-federalists as a clash between aristocracy and democracy, see G. WOOD, supra note 29, at 512-16. On the purportedly superior civic virtue of representatives as opposed to ordinary citizens, see Sunstein, Interest Groups, supra note 20, at 43-45.
256. See U.S. CONST. art. V. Bruce Ackerman's use of article V to build a theory of periodic constitutional revision through popular republican politics is discussed supra notes 73-80 and accompanying text.
257. 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 L.J. (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.
258. John Ely, for example, finds liberal pluralist political theory in The Federalist, and then goes on to apply the theory to the Bill of Rights. See J. ELY, supra note 8, at 80, 89-104. His conclusion is that the appropriate role for constitutional jurisprudence is "policing the process of representation." Id. at 73-88.
259. See H. STORING, supra note 257, at 15-23.
260. See V. HALL, supra note 236, at 281-82. In the view of some anti-federalists, the federalist fear of popular assemblies was a symptom of aristocratic pretensions. See 3 THE COMPLETE ANTI-FEDERALIST 94-97 (H. Storing ed. 1981) (An Officer of the Late Continental Army).
261. See H. STORING, supra note 257, at 17. To the anti-federalists, national representatives would be "too far removed from the people, in general, to sympathize with them, and too few to communicate with them." 2 THE COMPLETE ANTI-FEDERALIST, supra note 260, at 268 (The Federal Farmer). As a result, the representatives would circulate among and sympathize with only the "natural aristocracy" and the "popular demagogues," but not with the "substantial and respectable part of the democracy." Id. at 269, 275-76; see also id. at 369 (Brutus) (observing that "in a large extended country, it is impossible to have a representation, possessing the sentiments, and of integrity, to declare the minds of the people . . .").
262. These states were Virginia, North Carolina, New York, and Rhode Island. See Jarrett & Mund, The Right of Assembly, 9 N.Y.U. L.Q. REV. 1, 11 (1931). In addition, the right was included in a minority report from the Maryland convention. See B. SCHWARTZ, supra note 185, at 157.
263. 1 ANNALS (J. Gales ed. 1834), supra note 257, at 759.
264. Id. at 732.
265. In John Page's view, the right was essential to the preservation of the other first amendment rights; "[i]f the people could be deprived of the power of assembling," then they "might be deprived of every other privilege contained in the clause." Id. at 760. Thomas Tucker and Thomas Hartley added vaguely that the clause was "of importance" and "as necessary to be inserted . . . as most in the clause." Id. at 760-61.
266. Id. at 760. This statement corresponded to Gerry's views on the rebellion. While most Massachusetts leaders reacted to the convention movement with alarm, he remained cool and opposed repression until long after the Shaysites had turned from peaceful county conventions to armed attacks on the courts. See G. BILLIAS, ELBRIDGE GERRY, FOUNDING FATHER AND REPUBLICAN STATESMAN 150-51 (1976).
267. 1 ANNALS (J. Gales ed. 1834), supra note 257, at 761. Instruction was a common practice during the Revolutionary and Confederation periods. Town meetings or county conventions would instruct their representatives how to vote in the state legislature. For the representatives to vote otherwise was considered defiance of popular sovereignty. See G. WOOD, supra note 29, at 189-90.
268. See 1 ANNALS (J. Gales ed. 1834), supra note 257, at 776.
269. Id. at 764.
270. See id.
271. See supra text accompanying notes 252-56. See generally Sunstein, Constitutionalism, supra note 20, at 430-37 (discussing Madison's belief that representatives could independently achieve the public good).
272. 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 individual judgment: "Suppose 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.
273. See THE FEDERALIST NO. 63, supra note 5, at 387 (A. Hamilton or J. Madison) (emphasis omitted).
274. One wonders whether Sedgwick's insistence on a narrow reading might have masked a concern that the clause would in fact be read more broadly. Only a few years before, he had been a leader of the movement to suppress Shays' Rebellion. In the course of the conflict, his home was looted on one occasion and on another he was briefly captured. See R. WELCH, THEODORE SEDGWICK, FEDERALIST: A POLITICAL PORTRAIT 48-52 (1965). Unlike most of the counterinsurgency leaders, he was a resident of western Massachusetts and thoroughly immersed in local politics. It seems improbable that he was unaware of the Shaysites' reliance on the right of peaceable assembly to justify their county conventions.
275. No one was prosecuted or imprisoned merely for meeting or petitioning. The right to assemble was called upon to justify provincial and continental congresses, unauthorized assemblies of colonial legislators, nonimportation assemblies, and extra-legal county conventions. See J. REID, supra note 186, at 17-18.
276. Once an issue has been reduced to a clash of private interests, judges are not likely to impose costs on "innocent" third parties to assist one side or the other. For a brilliant treatment of this problem in the context of affirmative action, see Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 CORNELL L. REV. 993 (1989).
277. In asking this rhetorical question, I do not mean to suggest that these proposals would be unwise if implemented in addition to rather than as a substitute for protection for forceful protest. See, e.g., Eskridge, supra note 20, at 1032 (arguing that statutes "affecting certain discrete and insular minorities" should be interpreted, "where possible, for the benefit of those minorities").
278. Michelman, supra note 58, at 1529.
279. Ackerman, supra note 73, at 1072.
280. C.E. BAKER, supra note 161, at 117-18; see also supra text accompanying notes 39-42.
281. 487 U.S. 474 (1988).
282. Id. at 483.
283. Id. at 486-87 (quoting Carey v. Brown, 447 U.S. 455, 478-79 (1980) (Rehnquist, J., dissenting)).
284. See id. at 486.
285. Id. at 498 (Stevens, J., dissenting).
286. See, e.g., P. MAIER, supra note 167, at 127-28 (describing the practice of mass meetings outside the homes of merchants to dissuade them from importing British goods).
287. The doctor's home was picketed "on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours." Frisby, 487 U.S. at 476.
288. It should be remembered that the Court was upholding a flat ban on residential picketing. Limits on the number or intrusiveness of pickets would pose a more difficult case even considering the picketing's functions in higher lawmaking.
289. 458 U.S. 886 (1982).
290. See NAACP v. Claiborne Hardware Co., 393 So.2d 1290, 1295-97 (Miss. 1980), rev'd, 458 U.S. 886 (1982).
291. See Claiborne Hardware, 458 U.S. at 900.
292. See id. at 903-04.
293. At least four incidents of violence were connected to the boycott, including two involving shots fired into the homes of non-boycotters. See id. at 904. At a boycott rally, Charles Evers, the Field Secretary of the NAACP, reportedly threatened to break the neck of anyone caught violating the boycott. See id. at 902.
294. See id. at 912-15, 934.
295. Id. at 910; cf. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971) (stating that "peaceful picketeering" is protected by the first amendment even where the pamphlet's message is "intended to exercise a coercive impact" on others).
296. Claiborne Hardware, 458 U.S. at 933-34.
297. 110 S.Ct. 768 (1990).
298. See id. at 776-78; id. at 791-92 (Blackmun, J., concurring in part and dissenting in part); id. at 782 n.1 (Brennan, J., dissenting in part).
299. Id. at 777.
300. Id.
301. Id.
302. On this commitment, see J. ELY, supra note 8, at 105-34; Kalven, The Metaphysics of the Law of Obscenity, 1960 SUP. CT. REV. 1, 19; Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20, 29-35 (1975).
303. 365 U.S. 127 (1961).
304. See id. at 138-40 (noting that "[i]t is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors").
305. Id. at 137-38. Noerr was subsequently extended to protect access to administrative agencies and courts. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972); United Mine Workers v. Pennington, 381 U.S. 657, 669-70 (1965). For an illuminating analysis of Noerr as an embodiment of interest group pluralism, see Minda, supra note 7, at 931-35.
306. SCTLA, 110 S.Ct. at 776. At first glance, this reasoning would seem to overturn Missouri v. National Org. for Women, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980) (extending Noerr to protect a boycott of Missouri convention facilities in protest of the state legislature's failure to ratify the Equal Rights Amendment). More likely, however, the NOW decision¾having served as part of the support for Claiborne Hardware, 458 U.S. at 914 n.48¾will now be saved by that decision.
307. For readers who have an integrated conception of political and economic life, it may be difficult to understand the Court's approach. The SCTLA lawyers were, like the Noerr railroads, seeking action from government. And the railroads were, like the lawyers, exerting economic power (by paying for a publicity barrage). But the railroads' publicity campaign would produce economic results only if the elected representatives were persuaded to legislate, while the lawyers could and did produce immediate economic results by collectively withholding their services.
308. Claiborne Hardware could also be viewed as an extension of suspect classification analysis into the first amendment area. Since black Americans are unable effectively to participate in interest group bargaining, it follows that they should be permitted to use extraordinary, extra-institutional forms of political action. See H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT 123-72 (1966); Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287, 1311-12 (1982).
In its broad outline, this theory is not opposed to the vision of a popular republican supplement advocated here. It suggests that the first amendment protects the exercise of direct group power when necessary to remedy a malfunction in politics-as-normal. If limited to groups that are singled out for special protection under suspect classification analysis, however, it would provide inadequate protection. Republican moments are not just for discrete and insular minorities; indeed, virtually the entire people may participate, as in the struggle for independence. The theory would exclude the democratic reformers of the Jacksonian era, the populists of the late nineteenth century, and the trade unionists and unemployed activists of the 1930s.
The SCTLA Court may have had something like this theory in mind when it observed that the Claiborne Hardware boycotters were struggling "to change a social order that had consistently treated them as second class citizens." SCTLA, 110 S.Ct. at 777 (quoting Claiborne Hardware, 458 U.S. at 912). However, the Court's emphasis on the SCTLA boycotters' objective to benefit themselves economically, suggests that the Justices may not be anxious to adopt a theory that would require them to discriminate among social groups in the first amendment area. See SCTLA, 110 S.Ct. at 777-78.
309. See supra text accompanying notes 33-38.
310. 456 U.S. 212 (1982).
311. See L. TRIBE, supra note 116, at 200-03; Getman, Labor Law and Free Speech: The Curious Policy of Limited Expression, 43 MD. L. REV. 4, 16-19 (1984); Harper, The Consumer's Emerging Right to Boycott: NAACP v. Claiborne Hardware and its Implications for American Labor Law, 93 YALE L.J. 409 (1984); Kupferberg, Political Strikes, Labor Law, and Democratic Rights, 71 VA. L. REV. 685 (1985); Pope, The Three-Systems Ladder of First Amendment Values: Two Rungs and a Black Hole, 11 HASTINGS CONST. L.Q. 189, 224-28 (1984); Note, Peaceful Labor Picketing and the First Amendment, 82 COLUM. L. REV. 1469, 1489 n.132 (1982); Note, Labor Picketing and Commercial Speech: Free Enterprise Values in the Doctrine of Free Speech, 91 YALE L.J. 938 (1982).
312. The Claiborne Hardware decision distinguished ILA by making an apples-and-oranges contrast between the economic restrictions involved in that case with the political activity involved in Claiborne. See Claiborne Hardware, 458 U.S. at 912-13. However, Claiborne Hardware also involved economic restrictions, and ILA also involved political activity. See Pope, supra note 311, at 226-27.
313. ILA, 456 U.S. at 214.
314. See id. This factor figured in the decision of the First Circuit Court of Appeals denying first amendment protection to the boycott. See Allied Int'l, Inc. v. International Longshoremen's Ass'n, 640 F.2d 1368, 1379 n.11 (1st Cir. 1981), aff'd, 456 U.S. 212 (1982). For a penetrating constitutional analysis of the significance of Gleason's order, see Kupferberg, supra note 311, at 738-39.
315. See generally PRESIDENT'S COMMISSION ON ORGANIZED CRIME, THE EDGE: ORGANIZED CRIME, BUSINESS AND LABOR UNIONS 33-70 (1986) (recounting control of racketeers over ILA and efforts to expose mob involvement); D. GODDARD, ALL FALL DOWN: ONE MAN AGAINST THE WATERFRONT MOB (1980) (same).
316. Boycotts conducted by "Housewives Leagues" have been credited with winning 75,000 jobs for blacks during the depression. See J. JONES, supra note 142, at 215.
317. The boycotters demanded that all of the targeted businesses hire black clerks and cashiers and that the county government hire black policemen, welfare workers, school staff, and hospital staff. See NAACP v. Claiborne Hardware Co., 393 So. 2d 1290, 1296 (Miss. 1980), rev'd, 458 U.S. 886 (1982).
318. See C. BRIDENBAUGH, supra note 191, at 281-82.
319. See supra note 300 and accompanying text; see also Claiborne Hardware, 458 U.S. at 914 (stating that "[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself" (emphasis added)).
320. In addition to the Bill of Rights, the right of otherwise qualified nonpropertied citizens to vote, the right to be free from chattel slavery and involuntary servitude, the right of workers to self-organization, and the right to be free from private race and sex discrimination are all among the rights that gained legal recognition during republican moments.
321. See Hartog, The Constitution of Aspiration and "The Rights That Belong To Us All," 74 J. AM. HIST. 1013, 1024 (1987) (noting that "[g]roups have been able to draw from constitutional language ways of demonstrating that those who exercised power over them did so illegitimately, immorally, and wrongly, and therefore had nothing worthy of recognition as vested rights").
322. See Forbath, supra note 95, at 1208-14.
323. See Kennedy, supra note 120, at 1000-02.
324. Compare Hughes v. Superior Court, 339 U.S. 460 (1950) (holding that an injunction against picketers who were demanding that blacks be hired in proportion to their population in the area was justified by the state's policy against picketing to force discriminatory hiring on a racial basis) with Kirkland v. Wallace, 403 F.2d 413 (5th Cir. 1968) (treating picketing in support of demands for black hiring as constitutionally protected and striking down an anti-boycott statute as facially invalid).
325. Cf. Environmental Planning & Information Council v. Superior Court, 36 Cal. 3d 188, 197, 680 P.2d 1086, 1092, 203 Cal. Rptr. 127, 133 (1984) (holding that a secondary boycott by environmentalists against private businesses was entitled to first amendment protection).
326. Thus, in this case, the liberal principle of neutrality is best suited to protect republican values. As we have seen, there is no reason other than abstract consistency to be disturbed over convergences between liberal and republican theory. See supra note 38. For a thoughtful argument that judges can and should make content-based distinctions between communicative activities that do and those that do not contribute to republican deliberation, see Minda, supra note 7, at 1001-08.
327. See supra text accompanying notes 122-23.
328. The constitutional breakthroughs came in Hague v. CIO, 307 U.S. 496 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940) and Thomas v. Collins, 323 U.S. 516 (1945).
On the shift in the judicial view of labor picketing from commercial to political and back again, see Pope, Labor and the Constitution: From Abolition to Deindustrialization, 65 TEX.L.REV. 1071, 1076-78, 1089-96 (1987).
329. The Wagner Act was passed in 1935. The key union organizing victories were won against General Motors and "Big Steel" in 1936 and 1937. See generally I. BERNSTEIN, TURBULENT YEARS, A HISTORY OF THE AMERICAN WORKER: 1933-1941 (1969).
330. Cases involving the kind of militant protest tactics characteristic of republican moments included: Garner v. Louisiana, 368 U.S. 157 (1961) (reversing the convictions of sit-in protestors for disturbing the peace); Edwards v. South Carolina, 372 U.S. 229 (1963) (reversing the convictions of black demonstrators since there was no violence or threat of violence on their part or on the part of any member of the crowd watching them); and Cox v. Louisiana, 379 U.S. 536 (1965) (reversing the convictions of black protestors because the breach of peace statute was unconstitutionally vague and because the obstructing public passage statute was discriminatorily applied).
331. Earlier decisions issuing or upholding injunctions against civil rights protesters include Hughes v. Superior Court, 339 U.S. 460 (1950) (described supra note 324); Green v. Samuelson, 168 Md. 421, 178 A. 109 (1935) (concerning an injunction against picketing to compel white merchants to hire blacks); and A.S. Beck Shoe Corp. v. Johnson, 153 Misc. 363, 274 N.Y.S. 946 (Sup. Ct. 1934) (same).
On the judicial suppression of labor protest, see Forbath, supra note 95, at 1148-55.
332. See SCTLA, 110 S.Ct. at 788-90 (Brennan, J., dissenting).
333. Id. at 782 n.19.
334. See id. at 776-78, 782 n.19; id. at 788 (Brennan, J., dissenting).
335. At least one important form of boycott would, however, be excluded. Strikes for higher wages played an important role in the republican moment of the 1930s. Wage demands often reflect concerns of justice and self-respect rather than a simple desire for "more." See, e.g., P. DRUCKER, THE NEW SOCIETY: THE ANATOMY OF THE INDUSTRIAL ORDER 76 (1950) (noting that conflict over wages is really a "mock conflict" designed to hide deeper concerns over issues of "power" and "citizenship").
336. Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989). In that article, Ackerman takes a retrospective view of the three constitutional moments, asking how their outcomes should be implemented. He imagines the Justices in the caboose of a train, looking backward. Their job is to reflect upon the deeper meaning of the direction chosen by the people. As the train changes direction, new vistas are revealed, and familiar ones are seen in a fresh light. In this wonderfully graphic metaphor, Ackerman notes that the "distinctive thing about the judges . . . is that they remain in the caboose, looking backward¾not in the locomotive arguing over the direction the train should be taking at the next crossroads." Id. at 546. From this backward-looking perspective, Ackerman develops a fascinating and, I think, true picture of constitutional jurisprudence as an effort to interpret and reconcile the conflicting results of constitutional moments.
For an analysis of the intellectual structure of constitutional transformations, see Lipkin, The Anatomy of Constitutional Revolutions, 68 NEB. L. REV. 701 (1989) (applying Thomas Kuhn's theory of scientific revolutions to "constitutional revolutions").
337. See Ackerman, supra note 73, at 1050-55. As Professor Michelman put it, the Court is thus "cast as the agent of our constitutional past." Michelman, supra note 58, at 1521.
338. See Ackerman, supra note 73, at 1050, 1053.
339. See id. at 1053-57. Although Ackerman refers to Dred Scott as a "judicial failure," id. at 1051, it seems to have performed the same vital "higher lawmaking" functions that he attributes to the economic due process cases, namely focusing popular attention and escalating the level of struggle.
340. See Forbath, supra note 95, at 1116, 1148-49. Similarly, Karl Klare has argued that the Supreme Court's narrow construction of labor's rights under the Wagner Act contributed to the decline of rank and file participation and the rise of bureaucracy in the industrial unions. See Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265, 336 (1978).
341. Easterbrook, Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 15 (1984).
342. Although the canon calling for narrow construction of statutes in derogation of the common law is rarely cited, see W. ESKRIDGE & P. FRICKEY, LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 657 (1988), the method is often applied. Perhaps the most striking examples are decisions construing the right to engage in "concerted activities for . . . mutual aid or protection" under the National Labor Relations Act. 29 U.S.C. § 157 (1988). The Court has often construed this broad language narrowly in order to avoid infringing employers' common law rights. See, e.g., NLRB v. Local 1229, Int'l Bhd. of Elec. Workers, 346 U.S. 464, 475 (1953) (construing § 7 to exclude certain conduct because the "legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough"); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345 (1938) (holding that the NLRA did not deprive the employer of "the right to protect and continue his business" by permanently replacing employees who were exercising their § 7 right to strike). For discussion of these and other cases narrowly construing workers' statutory rights in order to preserve employer common law rights, see J. ATLESON, VALUES AND ASSUMPTIONS IN AMERICAN LABOR LAW(1983); Klare, supra note 340.
The method of broad construction is used regularly, often with citation to the canon calling for broad construction of remedial statutes. See, e.g., Gomez v. Toledo, 446 U.S. 635, 639 (1980) (describing 42 U.S.C. § 1983 as "remedial legislation . . . to be construed generously to further its primary purpose" (citation omitted)).
343. See 3 J. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 60.02 (N. Singer 4th ed. 1986) ("Every statute that makes any change in the existing body of law, excluding only those enactments which merely restate or codify prior law, can be said to 'remedy' some flaw in the prior law or some social evil.").
344. See Easterbrook, supra note 341, at 16.
345. See id. at 16-17.
346. Id. at 17. Similarly, Judge Posner identifies a category of statutes which are "based on public sentiment rather than on either an objective weighing of demonstrable pros and cons or on cartel-like pressures for redistributing wealth." Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. REV. 263, 271 (1982). Posner suggests that these statutes "cannot readily be defended on economic grounds given our existing and deficient knowledge of their effects." Id. Although Posner suggests that they are too important to be ignored, the existence of these statutes has no discernable impact on his proposals for proper statutory construction.
347. Easterbrook, supra note 341, at 17.
348. See Federal Trade Act, ch. 311, 38 Stat. 717, § 5 (1914) (codified at 15 U.S.C. § 45(a)(1) (1988)).
349. As used here, the term "republican statutes" serves a similar function to that of "reform statutes" as used in a 1977 article by Professor Blumrosen. See Blumrosen, Toward Effective Administration of New Regulatory Statutes, 29 ADMIN. L. REV. 87 (1977).
350. See H. HART & A. SACKS, supra note 7, at 1409-10.
351. See Macey, supra note 12, at 264-66.
352. Eskridge and Frickey use this pair of polar opposites to illustrate the difference between an instance of successful Madisonian deliberation and a special interest statute. See W. ESKRIDGE & P. FRICKEY, supra note 342, at 40.
353. See T. BROOKS, WALLS COME TUMBLING DOWN: A HISTORY OF THE CIVIL RIGHTS MOVEMENT 1940-1970 214-35 (1974); A. MORRIS, supra note 149, at 274.
354. See J. SUNDQUIST, POLITICS AND POLICY: THE EISENHOWER, KENNEDY, AND JOHNSON YEARS 268-69 (1968); Findlay, Religion and Politics in the Sixties: The Churches and the Civil Rights Act of 1964, 77 J. AM. HIST. 66 (1990).
355. See W. ESKRIDGE & P. FRICKEY, supra note 342, at 3, 13, 15. Throughout the lengthy congressional maneuvers and debates, civil rights protesters kept up the pressure. See T. BROOKS, supra note 353, at 228-35.
356. See W. ESKRIDGE & P. FRICKEY, supra note 342, at 40-46 (condensing and commenting upon E. SCHATTSCHNEIDER, POLITICS, PRESSURES AND THE TARIFF: A STUDY OF FREE PRIVATE ENTERPRISE IN PRESSURE POLITICS, AS SHOWN IN THE 1929-1930 REVISION OF THE TARIFF (1935)).
357. See J. AUERBACH, LABOR AND LIBERTY 26-32 (1966).
358. See I. BERNSTEIN, supra note 148, at 217, 236; see also supra notes 100-01 and accompanying text.
359. As originally introduced, the bill proclaimed:
The tendency of modern economic life toward integration and centralized control has long since destroyed the balance of bargaining power between the individual employer and the individual employee, and has rendered the individual, unorganized worker helpless to exercise actual liberty of contract, to secure a just reward for his services, and to preserve a decent standard of living, with consequent detriment to the general welfare and the free flow of commerce.
S. 2926, 73d Cong., 2d Sess. § 2, 78 CONG. REC. 3444 (1934). The ultimate statement of purpose mentioned the "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers," 49 Stat. 449 (1935), but emphasized the harm to commerce as part of a strategy to have the Act upheld under the commerce clause. See I. BERNSTEIN, supra note 148, at 344-45.
360. See, e.g., W. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL 1932-1940, at 151 (1963) (describing the Act as "radical"); Klare, Traditional Labor Law Scholarship and the Crisis of Collective Bargaining Law: A Reply to Professor Finkin, 44 MD. L. REV. 731, 756 (1985) (collecting additional quotations to the same effect).
361. See A. MCADAMS, POWER AND POLITICS IN LABOR LEGISLATION 11 (1964).
362. The principal amendments, those restricting secondary boycotts and organizational picketing, were added at the behest of management lobbyists after unions had succeeded in attaching their own NLRA "sweeteners" to the anti-corruption provisions of the Senate version. See id. at 49-54.
363. See id. at 193-96, 210-12.
364. Macey, supra note 12, at 239.
365. See Farber & Frickey, supra note 11, at 908-10 (arguing against mandating judges to distinguish between public interest and special interest statutes because of the danger that the purported public interest would "simply correspond with the judge's favored political program").
366. Macey, supra note 12, at 265-66.
367. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 809 (1983).
368. See supra text accompanying notes 112-14.
369. Blumrosen, supra note 349, at 94.
370. See id. at 97.
371. A famous example is Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). There, the Secretary of Transportation was directed by statute not to supply federal funds for highways routed through public parks unless there was no "feasible and prudent" alternative route. Id. at 405. The Court rejected the Secretary's contention that this provision entitled him to consider the economic and social costs of alternative routes, reasoning that Congress intended "that protection of parkland was to be given paramount importance." Id. at 412-13.
372. Instead, deferential and critical standards co-exist, with no stated criteria for choosing between them. The basic rule calls for the courts to defer to an agency's statutory construction unless Congress has "directly addressed the precise questions at issue" and clearly expressed its intent. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). This standard carves out a wide zone for agency discretion; it precludes courts from overturning agency constructions on the basis of purposive reasoning, broad inferences from statutory structure, or legislative history not directed to the particular point at issue. Chevron, however, also set forth a nondeferential counterprinciple. Recognizing that courts have the final say on matters of law, the Chevron Court announced that if "a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n.9. Of course, purposive reasoning, inferences from statutory structure, and general legislative history are all among the "traditional tools of statutory construction." If courts were to apply the full kit of traditional tools, Chevron's deferential principle would be swallowed up by its critical counterprinciple, as happened three years later in INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (using Chevron's critical counterprinciple and overturning an agency's statutory construction based on purposive reasoning and overarching legislative history as well as specific statutory language). Chevron and Cardoza-Fonseca are only the latest manifestations of a split that goes back four decades, to the time before the enactment of the Administrative Procedure Act. See S. BREYER & R. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 272-73 (2d ed. 1985); id. at 288 n.1 (Supp. 1988). For a persuasive explanation of the Court's non-deferential approach in Cardoza-Fonseca, see Eskridge, supra note 20, at 1032 (suggesting that the Court was unwilling to defer to the agency interpretation in part because it disadvantaged a discrete and insular minority).
373. See supra text accompanying notes 351-52.
374. See, e.g., Macey, supra note 12, at 263-64; Sunstein, Constitutionalism, supra note 20, at 469.
375. See, e.g., NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939) (overturning the NLRB's determination that a sit-down strike in protest of employer unfair labor practices is protected concerted activity); NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939) (overturning the NLRB's holding that an employer violated the NLRA by discharging employees for threatening a strike during the term of a collective bargaining agreement that lacked a no-strike clause). See generally Klare, supra note 340, at 265 (discussing how the Court's narrow conception of legitimate union activity barred labor from participating in social change).
376. Far from erecting a unitary structure of government, our Constitution "constitutes a system of conflicts." Leubsdorf, Deconstructing the Constitution, 40 STAN. L. REV. 181, 192 (1987).
377. See Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 20 WM. & MARY L. REV. 653, 679-80, 682-83 (1988) (summarizing Brandeis's ideal of civic courage and commenting on its role in first amendment jurisprudence).
378. See Blight, "For Something beyond the Battlefield": Frederick Douglass and the Struggle for the Memory of the Civil War, 75 J. AM. HIST. 1156, 1159 (1989).