Rights to Participate? Rights to Exclude?

Abstract

Abstract Liberal legal systems face an important problem in deciding whether the affirmative constitutional right of assembly and/or association should include a corresponding negative right to exclude unwanted participants. The US Supreme Court has developed a strong right of non-association, also salient for assemblies. Other liberal legal systems have not developed strong rights of non-assembly or non-association. The divergence reflects distinctive features of the US legal system: a rigid public-private distinction; the conflation of constitutional rights to free speech, assembly, and association; and the reification of paramount constitutional rights that categorically supersede competing interests. In contrast, legal systems in Europe and Canada take a more nuanced view of the public-private distinction; disaggregate rights of free speech, assembly, and association; and authorize judicial balancing of competing rights and interests. Those legal doctrines and practices discourage recognition of rights to non-association and non-assembly. Normatively, liberal democratic commitments to equal citizenship, pluralism, and collective self-governance counsel against a right of non-association, which tends to benefit relatively powerful groups. The importance for liberal democracy of assemblies’ public openness and contestability favours a constitutional regime that protects assembly from unwanted participants, such as counter-protesters, only in the event of violence or wholesale silencing.