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THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION

Published online by Cambridge University Press:  02 June 2008

Richard Boyd
Richard Boyd
Affiliation:
Government, Georgetown University
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Abstract

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.

Type
Research Article
Information
Social Philosophy and Policy , Volume 25 , Issue 2 , July 2008 , pp. 235 - 262
Copyright
Copyright © Social Philosophy and Policy Foundation 2008

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References

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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.

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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): 392–413CrossRefGoogle Scholar. 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), 69–70Google Scholar. 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.

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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.

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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)Google Scholar. 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)Google Scholar.

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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, 66–67Google Scholar.

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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)Google Scholar. See also Morgan, Edmund S., “Safety in Numbers: Madison, Hume, and the Tenth Federalist,” Huntington Library Quarterly 49 (1986): 95–112CrossRefGoogle Scholar; and Spencer, Mark G., “Hume and Madison on Faction,” William and Mary Quarterly 59 (2002): 869–96CrossRefGoogle Scholar.

40 Madison, Federalist No. 10, 128.

41 Ibid.

42 Ibid.

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, 104Google Scholar.

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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, 367Google Scholar.

46 Ibid.

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): 189–97CrossRefGoogle Scholar. 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)Google Scholar; and Coleman, Frank M., Hobbes and America: Exploring the Constitutional Foundations (Toronto: University of Toronto Press, 1978)Google Scholar.

48 Madison, Federalist No. 10, 123.

49 Ibid., 124.

50 Ibid.

51 Ibid.

52 Ibid.

53 Ibid.

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

55 Ibid.

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

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, 28–37Google Scholar. For a history of this controversy, see especially Elkins, Stanley and McKitrick, Eric, The Age of Federalism (New York: Oxford University Press, 1993)Google Scholar; Foner, Philip S., ed., The Democratic-Republican Societies, 1790–1800: A Documentary Sourcebook (Westport, CT: Greenwood Press, 1976)Google Scholar; Link, Eugene, Democratic-Republican Societies, 1790–1800 (New York: Columbia University Press, 1942)Google Scholar; and Slaughter, Thomas P., The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986)Google Scholar.

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

65 Ibid.

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, 228Google Scholar.

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)Google Scholar; Smith, James Morton, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell University Press, 1956)Google Scholar; and Ferling, John, Adams vs. Jefferson: The Tumultuous Election of 1800 (New York: Oxford University Press, 2004)Google Scholar.

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

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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.

76 Ibid.

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): 235–50CrossRefGoogle Scholar; and Wills, Gary, Explaining America: The Federalist (New York: Penguin, 1981)Google Scholar. 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)Google Scholar. 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)Google Scholar; 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)Google Scholar; 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)Google Scholar.

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.Google Scholar 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.

87 Ibid.

88 Ibid., 33.

89 Ibid., 30.

90 Ibid.

91 Ibid., 30–31.

92 Ibid., 33.

93 Ibid., 31–32.

94 Ibid.

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

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.