The Ordered Liberty of Assembly: The Covenants and Practices of Self-Government in the Plural Constitutional Community

Luke C. Sheahan*

This Article examines the text and history of the right peaceably to assemble in the terms of the Court’s traditionalism. The first Part examines the text of the Assembly Clause, looking at the etymology of the terms in the Clause, constitutional debates, and likely meaning.⁶ This analysis indicates that the text of the Assembly Clause can plausibly be read as a right independent of the Petition Clause and intended to protect a broad swath of what today we would call “civil society” institutions, self-formed communities around a variety of purposes. Included here is a discussion of the ratification of the Assembly Clause in light of the English regulation of assembly in the seventeenth century. Where some aspects of the American political and legal tradition are a continuity from England, such as the right to keep and bear arms, others are an explicit innovation, such as protection against general warrants and, I argue, the right peaceably to assemble. Based upon the text alone, the Assembly Clause could be reasonably interpreted to protect a broad swath of civil society groups. This Part concludes with a discussion of the expressive association jurisprudence demonstrating how it fails at a basic textual level to protect the right of assembly.

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© 2026 Luke C. Sheahan. 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.

*Associate Professor in the Department of Political Science at Duquesne University; Non-Resident Scholar at the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania; 2026–2027 Visiting Fellow in the James Madison Program for American Ideals and Institutions at Princeton University. Thanks to Joseph Blocher, John Inazu, and Richard Garnett for the panel discussion and comments on my argument, and to Emilie Kao and the organizers of the Notre Dame Law Review’s Symposium on “Constructing the Whole First Amendment: Examining the Role of Text, Doctrine, and History.” Thanks also to Thomas MacPhee, Caroline Cannizaro, Jack McEnery, and their colleagues on the Notre Dame Law Review for their work on the manuscript.

6 Reference to the Court’s textual analysis in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022) aids the analysis.