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  • Richard Boyd (a1)

Freedom of association holds an uneasy place in the pantheon of liberal freedoms. Whereas freedom of association and the abundant plurality of groups that accompany it have been embraced by modern and contemporary liberals, this was not always the case. Unlike more canonical freedoms of speech, press, property, petition, assembly, and religious conscience, the freedom of association was rarely extolled by classical liberal thinkers in the seventeenth and eighteenth centuries. Indeed Thomas Hobbes, David Hume, Adam Smith, and others seem to have regarded freedom of association with some trepidation because of the violent, irrational, and factional behavior of groups. This chapter illuminates these anti-associational assumptions in the writings of James Madison. Although Madison famously deplored political associations as sources of faction and civil dissension, he differed from other members of the Founding generation in his willingness to defend associational freedom. Madison's writings also shed light on the unenumerated status of the freedom of association in American constitutional law.

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1 Fuller, Lon, “Two Principles of Human Association,” in The Principles of Social Order, ed. Winston, Kenneth I. (Durham, NC: Duke University Press, 1981), 77.

2 Influential equations of liberalism with individualism include Macpherson, C. B., The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962); Sandel, Michael, “The Procedural Republic and the Unencumbered Self,” Political Theory 12 (February 1984): 8196; and Taylor, Charles, “Atomism,” in Taylor, , Philosophical Papers, Volume 2: Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985).

3 Oakeshott, Michael, On Human Conduct (Oxford: Clarendon Press, 1991); Oakeshott, , “The Political Economy of Freedom,” in Oakeshott, , Rationalism in Politics and Other Essays (Indianapolis, IN: Liberty Fund, 1991), 391–92. Although Oakeshott is often regarded as a “conservative” based on his early essays in defense of tradition, there is now widespread agreement about Oakeshott's place within the liberal tradition. While recognizing that liberty is an inherited tradition, Oakeshott also defends a purposively neutral rule of law intended to encourage pluralism and the maximum degree of individual flourishing. See, for example, Auspitz, Josiah Lee, “Individuality, Civility, and Theory: The Philosophical Imagination of Michael Oakeshott,” Political Theory 4 (August 1976): 261–94; Franco, Paul, The Political Philosophy of Michael Oakeshott (New Haven, CT: Yale University Press, 1990); Nardin, Terry, The Philosophy of Michael Oakeshott (University Park, PA: Penn State University Press, 2001); Boyd, Richard, “Michael Oakeshott on Civility, Civil Society, and Civil Association,” Political Studies 52 (October 2004): 603–22; Flathman, Richard, Reflections of a Would-Be Anarchist: Ideals and Institutions of Liberalism (Minneapolis: University of Minnesota Press, 1998); and Flathman, , Pluralism and Liberal Democracy (Baltimore, MD: Johns Hopkins University Press, 2005).

4 Hayek, F. A., “Individualism: True and False,” in Hayek, , Individualism and Economic Order (Chicago: University of Chicago Press, 1948), 46. On apparent and real taxonomical differences between Hayek's “liberalism” and Oakeshott's “conservatism,” see Boyd, Richard and Morrison, James, “F. A. Hayek, Michael Oakeshott, and the Concept of Spontaneous Order,” in Hunt, Louis and McNamara, Peter, eds., Liberalism, Conservatism, and Hayek's Idea of Spontaneous Order (New York: Palgrave, 2007), chap. 4.

5 Kateb, George, “The Value of Association,” in Gutmann, Amy, ed., Freedom of Association (Princeton, NJ: Princeton University Press, 1998), esp. 48.

6 Oakeshott, On Human Conduct, 115, 119, 157–58, 314–17.

7 It is one thing to suggest that individuals ought not to be compelled to associate against their will, and another, very different matter to say that they have an inalienable and absolute right to associate with others under all conditions and for all purposes. Like any other liberal freedom, the freedom of association cannot be construed as absolute and unbounded. The circumstantial boundaries of freedom of association have been considered in much more detail by Peter de Marneffe, “Rights, Reasons, and Freedom of Association,” in Gutmann, ed., Freedom of Association, 145–73. De Marneffe's point about the necessary limits of freedom of association and its similarity to other freedoms in this respect is well-taken, but in what follows I want to emphasize the differences between freedom of association and other core liberal freedoms.

8 Pope Leo XIII, , Papal Encyclical of May 15, 1891, “Rerum Novarum,” section 51.

9 Modern liberals are another story altogether. Among those modern liberals who make freedom of association one of the basic liberties are Mill, John Stuart, “On Liberty” (1859), in On Liberty and Other Essays, ed. Gray, John (Oxford: Oxford Classics, 1991), 17; and Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), 291, 309, 313, 332, 335, 337, 341. By “classical liberalism,” I refer to seventeenth- and eighteenth-century doctrines of limited government that regarded liberty primarily as the absence of restraint and saw this liberty as grounded in inalienable natural rights. “Modern liberalism,” of course, envisions a broader role for the state in providing enabling conditions for individuals to make proper use of their liberty; generally disregards the idea that freedom is rooted in metaphysical natural rights; and, accordingly, condones trade-offs of individual liberty in the interest of securing other goods like justice, equality, diversity, development, or social utility. There are ongoing scholarly disagreements about whether Mill is better described as a “classical” or a “modern” liberal, but I incline toward the latter interpretation. See Boyd, Richard, Uncivil Society: The Perils of Pluralism and the Making of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2004), chap. 5. For a somewhat different but very helpful taxonomy of this divide between “pluralist” and “rationalist” liberalisms, see Levy, Jacob T., “Liberalism's Divide, After Socialism and Before,” Social Philosophy and Policy 20, no. 1 (2003): 278–97.

10 See, for example, Hsiao, Kung Chuan, Political Pluralism (New York: Harper, 1927), 263.

11 Universal Declaration of Human Rights, adopted and proclaimed by the United Nations General Assembly Resolution 217 A (III) of December 10, 1948, article 20, section 1.

12 Hobbes, Thomas, Leviathan, ed. Curley, Edwin (Indianapolis, IN: Hackett, 1994), chap. 29, 218.

13 Debates about whether Hobbes is a “liberal,” properly speaking, are endless. I have surveyed these debates and answered largely in the negative. See Boyd, Richard, “Thomas Hobbes and the Perils of Pluralism,” Journal of Politics 63 (May 2001): 392413. Nonetheless, as Stephen Holmes has argued, even if Hobbes's politics are illiberal, there are still conceptual reasons to look at Hobbes as one of the progenitors of key ideas in the liberal tradition. Cf. Holmes, Stephen, “Hobbes's Irrational Man,” in Holmes, , Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995), 6970. Ironically, Hobbes's illiberal complaints about the dangerous and destabilizing effects of groups on both individual liberty and political authority have become a mainstay of the liberal tradition. My subsequent discussion of Hobbes and his hostility to the freedom of association draws upon, but does not reproduce, Boyd, Uncivil Society, esp. chaps. 1–3.

14 Hobbes, Leviathan, chap. 6, 31.

15 Ibid., chap. 8, 41–42; chap. 29, 214.

16 Hobbes, Thomas, “Philosophical Rudiments Concerning Government and Society,” in The English Works of Thomas Hobbes, ed. Molesworth, Sir William (London: J. Bohn, 1839), vol. II, 78.

17 Hobbes, Leviathan, chap. 21, 138, 143.

18 I owe this observation to Oakeshott, “Introduction to Leviathan,” in Oakeshott, Rationalism in Politics, 282.

19 Hobbes, Leviathan, chap. 22, 154.

20 Ibid., chap. 22, 152–55.

21 On some civil grounds for limiting toleration, see esp. Locke, John, A Letter Concerning Toleration, ed. Tully, James (Indianapolis, IN: Hackett, 1983), 39, 49–51.

22 Ibid., 51.

24 Ibid., 52.

25 Ibid., 51.

26 Ibid., 52.

27 Ibid., 34.

28 David Hume, “Of Parties,” in Hume, , Essays: Moral, Political, and Literary, ed. Miller, Eugene (Indianapolis, IN: Liberty Press, 1985), 55.

29 Ibid., 59–61.

30 Hume, David, Dialogues Concerning Natural Religion, ed. Popkin, Richard (Indianapolis, IN: Hackett, 1980), 8285.

31 David Hume, “Of the Rise and Progress of the Arts and Sciences,” in Hume, Essays, 118–20, 125–35; Hume, Dialogues, 80.

32 David Hume, “Of Refinement in the Arts,” in Hume, Essays, 271–75; David Hume, “Of Commerce,” in Hume, Essays, 264.

33 David Hume, “Of the Jealousy of Trade,” in Hume, Essays, 327–31; David Hume, “Of National Characters,” in Hume, Essays, 202–3, 206–7.

34 On this “republican” antipathy toward groups, see especially Rousseau, Jean-Jacques, The Social Contract, ed. Gourevitch, Victor (Cambridge: Cambridge University Press, 1997), Book II, chap. 3, 5960. On the differences between classical liberalism and the “classical republicanism” from which it is now commonly distinguished, see especially Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Connection (Princeton, NJ: Princeton University Press, 1975). Two influential works that treat the American Revolution as largely a product of classical republican ideas of duty, civic virtue, and the public good are Wood, Gordon, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969); and Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap, 1967). The American Revolution and Founding are now generally acknowledged to have been products of multiple intellectual traditions, including Lockean liberalism, classical republicanism, and Christianity. See especially Kloppenberg, James T., The Virtues of Liberalism (New York: Oxford University Press, 1998).

35 These sentiments are expressed most succinctly by South Carolina's Supreme Court justice Burke, Aedanus, Considerations on the Society or Order of Cincinnati; Lately Instituted by the Major-Generals, Brigadier-Generals, and Other Officers of the American Army, Proving That It Creates a Race of Hereditary Patricians or Nobility (Philadelphia, PA: Robert Bell, 1783). For an excellent treatment of these attitudes, see Hünemörder, Markus, The Society of the Cincinnati: Conspiracy and Distrust in Early America (New York: Berghahn Books, 2006).

36 Franklin, Benjamin, “Letter to Sarah Bache,” January 26, 1784, in The Works of Benjamin Franklin, ed. Smyth, Albert Henry (New York: MacMillan, 1905–1907), vol. 9, 161–66; Jefferson, Thomas, “Letter to George Washington,” April 16, 1784, in Jefferson, , Writings, ed. Peterson, Merrill D. (New York: Library of America, 1984), 790–93; Jefferson, “Answers and Observations for Démeunier's Article on the United States in the Encyclopédie Methodique (1786),” in Jefferson, Writings, 582–88; Burke, Considerations on the Society or Order of Cincinnati, 3–5.

37 As recorded in Madison, James, “Journal of the Constitutional Convention,” July 25, 1787, in The Writings of James Madison, ed. Hunt, Gaillard (New York: Putnam, 1903), vol. IV, 6667.

38 James Madison, Federalist No. 10, in Madison, James, Hamilton, Alexander, and Jay, John, The Federalist Papers, ed. Kramnick, Isaac (New York: Penguin, 1987), 123.

39 Madison, Federalist No. 10, 124. There is a long tradition emphasizing the influence of David Hume, in particular, and the Scottish Enlightenment, in general, on the political thought of James Madison. Perhaps the single most influential treatment is Adair, Douglass, “That Politics May Be Reduced to a Science: David Hume, James Madison, and the Tenth Federalist,” in Fame and the Founding Fathers: Essays by Douglass Adair, ed. Colburn, Trevor (Indianapolis, IN: Liberty Press, 1998). See also Morgan, Edmund S., “Safety in Numbers: Madison, Hume, and the Tenth Federalist,” Huntington Library Quarterly 49 (1986): 95112; and Spencer, Mark G., “Hume and Madison on Faction,” William and Mary Quarterly 59 (2002): 869–96.

40 Madison, Federalist No. 10, 128.

43 Madison, James, Speech of Wednesday, June 6, 1787, “Journal of the Constitutional Convention,” in The Writings of James Madison, ed. Hunt, Gaillard (New York: Putnam, 1902), vol. III, 104.

44 Madison, Federalist No. 10, 126.

45 Madison, James, “Vices of the Political System of the United States,” April 1787, in The Writings of James Madison, ed. Hunt, Gaillard (New York: Putnam, 1901), vol. II, 367.

47 Although commentators have gestured toward Hobbesian sensibilities at work in The Federalist, any direct connection to Madison or others of the Founding generation has proven difficult to establish, perhaps because of Hobbes's political and religious disreputability. On Hobbes's relative lack of influence (at least as measured by citations) on the Founding generation, see Lutz, Donald, “The Relative Influence of European Writers on Late Eighteenth Century American Political Thought,” American Political Science Review 78 (March 1984): 189–97. Attempts to explore these linkages include Stoner, James R. Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1994); and Coleman, Frank M., Hobbes and America: Exploring the Constitutional Foundations (Toronto: University of Toronto Press, 1978).

48 Madison, Federalist No. 10, 123.

49 Ibid., 124.

54 Madison, James, “Parties,” National Gazette, January 23, 1792, in Madison: Writings, ed. Rakove, Jack (New York: Library of America, 1999), 504.

56 Fleet, Elizabeth, “James Madison's ‘Detached Memoranda,’William and Mary Quarterly 3 (October 1946): 552.

57 Madison, “Parties,” 504–5.

58 Madison, Speech of Wednesday, June 6, 1787, “Journal of the Constitutional Convention,” 103.

59 James Madison, “A Candid State of Parties,” National Gazette, September 26, 1792, in Rakove, ed., Madison: Writings, 530–31.

60 Ibid., 531.

61 Ibid., 532.

62 James Madison, “Speech in Congress on ‘Self-Created Societies,’ ” February 27, 1794, in Rakove, ed., Madison: Writings, 552.

63 Branded by their Federalist critics as offshoots of French Jacobinism, these Revolutionary societies and their “Committees of Correspondence” arose in the early 1790s as an indigenous response—both elite and popular—to the pro-British economic and foreign policy of the Federalist administrations. After Washington denounced them publicly in his speech of November 19, 1794, Congress debated a motion to censure them, which was eventually defeated in the House of Representatives. Cf. The Writings of George Washington, ed. Fitzpatrick, John C. (Washington, DC: Government Printing Office, 1940), vol. 33, 474–79, 505–9, 522–24; vol. 34, 17–19, 28–37. For a history of this controversy, see especially Elkins, Stanley and McKitrick, Eric, The Age of Federalism (New York: Oxford University Press, 1993); Foner, Philip S., ed., The Democratic-Republican Societies, 1790–1800: A Documentary Sourcebook (Westport, CT: Greenwood Press, 1976); Link, Eugene, Democratic-Republican Societies, 1790–1800 (New York: Columbia University Press, 1942); and Slaughter, Thomas P., The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986).

64 Madison, “Self-Created Societies,” 552.

66 Madison, James, “Letter to Thomas Jefferson,” December 21, 1794, in The Writings of James Madison, ed. Hunt, Gaillard (New York: Putnam, 1906), vol. VI, 228.

67 Madison, “Self-Created Societies,” 551.

68 Thomas Jefferson, “Letter to James Madison,” December 28, 1794, in Jefferson, Writings, 1015.

69 Madison, “Self-Created Societies,” 552.

70 For a comprehensive survey of the Alien and Sedition Acts and the political circumstances that gave rise to them, see Miller, John Chester, Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown, 1951); Smith, James Morton, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell University Press, 1956); and Ferling, John, Adams vs. Jefferson: The Tumultuous Election of 1800 (New York: Oxford University Press, 2004).

71 Sedition Act, Fifth Congress, Session II, July 14, 1798.

72 James Madison, “Virginia Resolutions Against the Alien and Sedition Acts,” December 21, 1798, in Rakove, ed., Madison: Writings, 590.

73 James Madison, “Report on the Alien and Sedition Acts,” January 7, 1800, in Rakove, ed., Madison: Writings, 630.

74 Madison, “Virginia Resolutions,” 590.

75 Madison, “Report on the Alien and Sedition Acts,” 627.

77 Ibid., 651.

78 Ibid., 653.

79 In addition to the many scholarly contributions stressing the influence of David Hume's writings (cited in note 39 above), Madison was more broadly influenced by the Scottish Enlightenment through his tutor, Donald Robertson, and Princeton's John Witherspoon. See especially Branson, Roy, “James Madison and the Scottish Enlightenment,” Journal of the History of Ideas 40 (Spring 1979): 235–50; and Wills, Gary, Explaining America: The Federalist (New York: Penguin, 1981). On the more general influence of the Scottish Enlightenment on the American Founding, see Wills, Gary, Inventing America: Jefferson's Declaration of Independence (Garden City, NY: Doubleday, 1978). On the idea that politeness and sociability become surrogates for political activity in the Scottish Enlightenment, see Phillipson, Nicholas, “Politics, Politeness, and the Anglicisation of Early Eighteenth-Century Scottish Culture,” in Mason, Roger A., ed., Scotland and England, 1286–1815 (Edinburgh: John Donald, 1987); Phillipson, Nicholas, “Scottish Public Opinion and the Union in the Age of Association,” in Phillipson, Nicholas and Mitchison, Rosalind, eds., Scotland in the Age of Improvement (Edinburgh: Edinburgh University Press, 1970); and Robertson, John, “The Scottish Enlightenment at the Limits of the Civic Tradition,” in Hont, Istvan and Ignatieff, Michael, eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge: Cambridge University Press, 1986).

80 Madison, “Report on the Alien and Sedition Acts,” 657.

81 United States Constitution, First Amendment.

82 Madison, “Detached Memoranda,” 552–53.

83 Ibid., 554.

84 Ibid., 556–57.

85 Madison, James, “Memorial and Remonstrance Against Religious Assessments,” June 20, 1785, in Rakove, , ed., Madison: Writings. Madison's argument for separating church and state in this oft-cited text was sparked by Patrick Henry's proposed “Bill Establishing a Provision for Teachers of the Christian Religion” (1784–1785) in the General Assembly of Virginia, which would have levied a general assessment to support the promulgation of Christianity. Madison spearheaded efforts to defeat Henry's bill in 1785, paving the way for passage of Thomas Jefferson's “Act for Establishing Religious Freedom” in January 1786.

86 Madison, “Memorial and Remonstrance Against Religious Assessments,” 34.

88 Ibid., 33.

89 Ibid., 30.

91 Ibid., 30–31.

92 Ibid., 33.

93 Ibid., 31–32.

95 Madison, James, “Speech in Congress on Religious Exemptions from Militia Duty,” December 20, 1790, in Rakove, , ed., Madison: Writings, 479–80.

96 Madison, “Memorial and Remonstrance Against Religious Assessments,” 33.

97 Hsiao, Political Pluralism, 263.

98 On this distinction between purely self-regarding and other-regarding actions, see Mill, “On Liberty,” esp. 14, 16–17, 62, 88, 104–5.

99 Holmes, Passions and Constraint, esp. chap. 6.

100 For a more detailed treatment of the birth of an “associational” liberalism, see Boyd, Uncivil Society, esp. chaps. 4, 6–8.

This essay benefited greatly from my conversations with Eric Kasper, Jacob Levy, James Morrison, Howard Schweber, Greg Weiner, the other contributors to this volume, and the careful reading of Ellen Frankel Paul.

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