There is No Constitutional Right to Occupy
by P.A. Madison on October 14th, 2011
“[A]ssembly to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.” —William Rawle
I wish to briefly address the assertion the folks occupying Wall Street – and elsewhere – are merely exercising their First Amendment right to peaceful assembly. The constitutional provision to peaceably assemble extends no further than to peacefully assemble for a lawful purpose such as circulating a petition to present to government. It is not a requirement for government to provide a public soapbox in order for groups to publicly advocate some policy or protest some action through public disturbance, or disruption of daily life of the public.
Books are filled with court holdings since the founding that says the right to assemble gives no group of people a right to “commit violence upon persons or property,” or “resist execution of the laws,” or “to disturb public order.”
If laws for restricting camping, the hours for which public property may be occupied, or even how many persons may occupy a given space, have always been a legitimate municipal exercise, what makes anyone think either State or Federal constitutions exempts persons from such laws?
Tucker said of the the federal right to assemble was “to protect the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.” The Supreme Court case of United States v. Cruikshank observed the purpose of assembly was for petitioning government: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.”
In England, the right of assembly existed from early times and was strictly tied to the right of petitioning Parliament for political purposes, which the crown had always strongly contested. Different acts of the Tudors and Stuarts sought to limit and restrict assembly.
There is a big difference between gathering to draw public attention to some grievance or message through disruption of the public peace and peacefully gathering to address common public concerns and to circulate a petition for signature. The later requires no mob occupation or disruption of the peace or laws.
From a purely historical standpoint, “Occupy Wall Street” is nothing more than rebellion, and as such generally been dealt with by use of the militia to suppress.
The right to assemble and petition found under American constitutions is grounded in the Declaration of Rights of 1688 under William III and Mary that read: “That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegal.” The act of James of putting on trial seven bishops for libel for circulating a petition of grievances against one of his declarations was highly controversial and something the colonies wanted to prevent any re-occurrence.
The Declaration of Colonial Rights of 1775 complained:
And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the crown for redress, have been repeatedly treated with contempt by his majesty’s ministers of state.
Justice Story said assembly was unnecessary to be expressly provided for because of our republican form of government, and he was right since legislative or political redress in America comes from the ballot. It is worth noting that in early England Parliament was as much a court as it was a legislative body while in America the legislatures had no judicial authority. Thus, petitions to either Congress or a State legislature must be related to legislation and not grievances cognizable in court.
I will finish by saying any public protest or large gatherings are only permissible as far as local municipal law permits. As William Rawle put it, “assembly [is] to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.” An ordinance that denies a gathering of people from disrupting traffic, a funeral, business or from creating a public nuisance in order to draw attention to some message does not deny any constitutional freedom.
Finally, no amount of court opinion has been able to erase the First Amendment’s beginning words; “Congress shall make no law …”
Related: Orignal Meaning of Freedom of Speech