Assembling the Past: History, Tradition, and the Future of the Right of Assembly

John Inazu*

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.

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© 2026 John Inazu. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Sally D. Danforth Distinguished Professor of Law and Religion, Washington University in St. Louis. Thanks to Joseph Blocher, Marc DeGirolami, Andrea Katz, Jeff Powell, Lucy Williams, participants at a Washington University School of Law faculty workshop, and students in Professor Williams’s constitutional law colloquium for comments on an earlier draft. Thanks also to Nathan Akers, Justus Hanson, Rayen Rojas, and Perri Wilson for research assistance and to Timothy Davis and his colleagues at the Notre Dame Law Review for editorial assistance.