John D. Inazu (Washington University in St. Louis – School of Law) has posted Assembling the Past: History, Tradition, and the Future of the Right of Assembly (101 Notre Dame L. Rev. (forthcoming 2026)) (30 pages) on SSRN. Here is the abstract;
This Article revisits the long-neglected Assembly Clause of the First Amendment in light of the Supreme Court’s recent turn to “history and tradition” as an interpretive methodology. I trace the doctrinal errors that obscured assembly—its narrowing to petition in the late nineteenth century, its absorption into speech through the public forum doctrine, and its displacement by a nontextual right of association. I argue that a tradition-based interpretive methodology offers a possibility for recovering assembly’s constitutional significance. Drawing on the work of Marc DeGirolami and H. Jefferson Powell, as well as Alasdair MacIntyre’s account of tradition as an embodied, historically extended argument, I show how the Assembly Clause exemplifies a living practice that cuts across ideological divides. Properly understood, assembly reflects not only expressive activity but also the social practices of gathering, dissent, and collective identity that sustain democratic pluralism. The Article concludes that the Court’s emphasis on history and tradition, if taken seriously, should restore assembly to its rightful place as a core First Amendment protection.
Posted at 6:15 AM