The Constitutional Right of Association

It has been accurately observed that we are a nation of joiners. Alexis de Tocqueville, as early as 1835, concluded that in no country in the world has the principle of association been more successfully used, or more unsparingly applied to a multitude of different objects, than in America. Tocqueville noted the ubiquitous character of American voluntary associations. In 1958, the Supreme Court of the United States affirmed, for the first time in unmistakable terms, the status of freedom of association as a fundamental right. The occasion for this affirmation was an attempt by the State of Alabama to oust the National Association for the Advancement of Colored People from that State, ostensibly for that organization\u27s failure to comply with a statute requiring foreign corporations to qualify before doing intrastate business. The State obtained a court order requiring that the NAACP produce certain records, including a list of all its Alabama members, on the grounds that such information was required in order to answer the association\u27s denial that it was conducting intrastate business. On certiorari from a judgment of contempt for failure to reveal the names, the Supreme Court reversed, holding that the secrecy of the membership list was essential to the freedom of association of the members and that the order constituted an unwarranted invasion of that freedom. For obvious reasons, the individual members of the NAACP were not parties to the action. The association, therefore, asserted both its own alleged constitutional rights and the constitutional rights of its members. The Court seemed to regard the association and its members as in every practical sense identical for the purpose of the association\u27s assertion of the members\u27 right to silence, a right which would be nullified in the very act of its assertion by the members themselves. The Supreme Court recognized that inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Most importantly for our purpose, the Court affirmed, for the first time in unmistakable terms, the fundamental character of freedom of association as a basic constitutional liberty. In view of the essential character of this freedom, and the catastrophic effect of disclosure upon the NAACP, the Court found that the rather tenuous connection between the disclosure of members\u27 names and the, state\u27s capacity to determine whether the association was doing intrastate business was insufficient justification for the resultant restriction upon freedom of association. In analyzing this newly-asserted freedom of association, notice should be taken of the tacit recognition which was given to it before its explicit proclamation in 1958. Although the varieties of voluntary associations are virtually endless, the development of the basic right of association may be seen from its evolution with relation to a few such groups. Today the freedom of association is principally discussed and applied with reference to labor unions, pressure groups and what, for want of a better term, we can call subversive associations. But, with the possible exception of the last named, the legitimacy of each of these groups has long had the sanction of law to a greater or lesser degree