Law & Liberty is pleased to welcome our newest contributing editor, Luke C. Sheahan. To mark the occasion, Sheahan joined L&L editor John Grove to talk about the central theme of his work: the freedom of association. They discuss the thought of Robert Nisbet, the relationship between civil society and the state, and the way the Supreme Court has treated association over the years.

Related Links

“The West’s Quest,” Law & Liberty Podcast with Luke Sheahan
“The Failure of Political Community” by Luke Sheahan
Twilight of Authority by Robert Nisbet
The University Bookman
Why Associations Matter by Luke Sheahan
Freedom of Association, Vol. I: In Theory, ed. by Luke C. Sheahan and Kenneth B. McIntyre
Freedom of Association, Vol . II: Applied, ed. by Luke C. Sheahan and Kenneth B. McIntyre

Transcript

James M. Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

John Grove (00:39):

Hello and welcome to the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty. I’m filling in this episode for our regular host, James Patterson. I’m pleased today to be joined by a familiar guest, Professor Luke Sheahan. Professor Sheahan is an associate professor of political science at Duquesne University. He’s a senior affiliate in the program for research on religion and urban civil society at the University of Pennsylvania, and he is the editor of the University Bookman, published by the Russell Kirk Center. He’s also the author and editor of several books, including Why Associations Matter, and recently edited a new edition of Robert Nisbet, The Social Philosophers, which we had the pleasure of speaking about six months ago here on the Law & Liberty Podcast. And I am particularly excited to have Luke on today because we are going to be welcoming him as a new contributing editor to Law & Liberty. So we look forward to being able to hear more from Luke on a regular basis over the next coming months and years. So Luke, thanks for joining us.

Luke Sheahan (01:40):

Thank you for having me.

John Grove (01:42):

Well, we spoke a few months ago about Robert Nisbet. That episode is called “The West’s Quest,” if anybody wants to look that up, where we talked about the social philosophers and that book in particular. But I thought we might start with Nisbet again for this episode because Nisbet has been an important influence for you, an inspiration for you, and also an inspiration for me. And Nisbet is a sort of distinct voice in American conservatism, and particularly for the moment we find ourselves in right now, I think what Nisbet has to say is getting lost in the mayhem of political conservatism in America. So why don’t you say a little bit about how Nisbet has inspired your work, what you find valuable in him and maybe what he has to say to the present moment in American conservatives.

Luke Sheahan (02:31):

My introduction to Nisbet was through one of those lists where you’re supposed to … [a] list of conservative books you’re supposed to read. So I read Quest for Community and it was great, but it didn’t quite resonate with me what Nisbet was actually getting at. So I read it again while reading Supreme Court case law on freedom of association, and I wondered why freedom of association had risen the way that it did and Supreme Court case law and then been sidelined in recent decades. And I thought Nisbet was the key there. So Nisbet’s thesis and quest is that the decline of intermediate associations is caused by the rise of the political state. He says this is the most significant thing in recent centuries in terms of understanding economic and social change and development. And I thought, well, in the microcosm that might be true and Supreme Court case law and wrote a book about it.

(03:34):

And I think Nisbet gave this incredible insight of when you look at civil society associations construed broadly, their struggle, their existence, their rise and fall might have to do with the interactions with political power in important ways. And so Nisbet really hones in on that and gives us tools to identify that. And he does so in a way that very few others do with his clarity and historical breadth and theoretical penetration. And so reading Nisbet gives this perspective on the social realm that is distinct from what Libertarians contribute with their focus on the individual and their concern over state power and more conventional conservatives who might be a little more prone to recognize the legitimacy of some exercise of political power, but not recognizing that even when political power seems to be working at the behest of or on behalf of social institutions, they in fact undermine them. So there’s something unique about the exercise of political power that might work always in everywhere to the detriment of these social groups.

John Grove (04:52):

You and I were talking about this a few days ago as we were discussing this podcast and we talked about how nobody really knows how to categorize Nisbet today if they go back and read him. And it’s sort of interesting, I was thinking about this later, that today, right now, the fault line of conservatism seems to be presented as national conservatism versus fusion Reagan’s conservatism. And when you go back and read Nisbet in the eighties about fusion Reagan conservatism, his critiques basically sound like the critiques that they make against national conservatism today. So it struck me that Nisbet would be sort of surprised to hear that however many years after his death now that fusionist Reagan conservatism is being pitted against something called national conservatism, because he thought they were already pretty nationalist at that time. So what is it about nationalism and national populism, I guess that Nisbet saw as uniquely dangerous, especially in the United States context, where sort of nationalist sentiments is this sort of centralizing force over and against localities and state governments and constitutional limits? What was so dangerous for him about that when it comes its relationship to civil society, relationship between government and civil society.

Luke Sheahan (06:16):

So he saw nationalism as dangerous because had been fused with the nation-state. So the idea being that the real locus where the action’s at is at the national state level. So your local affiliations and loyalties and relationships are simply unimportant in comparison to national politics. The problem is, is that it’s impossible to have the sort of relationships and affinities and loyalties that are concrete and even limited by in the local sense. So at the national level, it really is an abstraction and there’s a lot to defend. We will get into it of the place of the nation-state and all the and Nisbet’s conception, and I think he has a place for it and an important one, but to place your primary loyalty there or to make it the overriding force in society and politics is dangerous because it inherently undermines those more local authorities.

(07:13):

And the problem is individuals need those local authorities just in terms of fundamental identity and relationships. And so one of his big insights is that when you see a growth of political power at the national level and the decrease of local authorities and civil society authorities, individuals don’t just shift allegiances and loyalties and kind of finds the meaning in their life from the nation-state in front of the local instead of the local community or religion or whatever else it had before. Rather the individual becomes alienated. So you’ll see a rise of ideological fanaticism, for example. If you don’t have a local loyalty that grounds you end up leaping into the individual leaps into abstractions, into ideological fanaticism. He’s explaining the rise of right wing and left wing fanaticism, mostly fanaticism coming out of that alienation. So he said it’s dangerous because you end up alienating your whole populace and it lays the groundwork for a rise of even ever stronger, more authoritarian or even totalitarian political state. And the trajectory is one that’s hard to reverse. Once you undermine those local authorities and affiliations, it’s really hard to get ’em back. So he’s worried about kind of a one-way ratchet and that the political state isn’t just an exchange. We’re not Pennsylvanians and Virginians anymore and Somerset, that’s okay, we’re just Americans and that’s what we are. Well, the problem is that doesn’t really work in the same way.

John Grove (08:52):

What do you see as his understanding of the legitimate purpose and the legitimate function of the nation-state? Because you brought that up a minute ago there, and sometimes when you read him, it does kind of come across as almost heavy, especially when he’s talking about the centralized state. It comes across as very libertarian sounding, just this is just something, it comes out of military society, it comes from domination, it’s all force and power. But he is in this tradition of conservatism of people who see a legitimate role for the state. But that also warn you to be highly skeptical about the stories that the state tells about itself and don’t buy into the sort of mythologies of the state. But what do you see as his, or I should say, what did Nisbet see as the legitimate role of the nation-state?

Luke Sheahan (09:49):

Yeah, so the way to understand it, he’s highly critical of the nation-state and what he’s getting at is exactly what you said, the story the state is told about itself. It is the great liberator and the great protector. And so it came in and freed all of the individuals from the terrible oppressions of society and offered them all sorts of rights that he never would’ve had otherwise. We can talk about the expansion of rights and that sort of thing. What you should be suspicious of is that it was, that’s actually how it played out. So he has this dichotomy between monism and pluralism and a monistic understanding of politics and a pluralistic understanding of politics. So a monist nation-state would be one that sees itself as precisely as the center of authority and patriotism in all of that. And so it’s there to undermine and suppress local authorities, whether it’s the states, towns, religious parishes, all these sorts of things, or to be undermined and suppressed on behalf of the primary identity of the nation-state.

(10:47):

But there’s a conception of the nation-state, and one could argue this is precisely what the American conception is, that it is the overall complete community, an Aristotle sense. So it’s the complete community. So it’s going to cover national security and most economic exchange and kind of contain all the other communities within it. But precisely in the very nature and conception of his existence is those other associations. So if there’s to be a utilitarian understanding of any of these communities, it’s the political state that’s the utilitarian one. So the monist conception even sometimes is drawn by some conservatives is that why do we need the family? Well, the family does a very good job of making productive economic actors who are good citizens, and it does, but is that all the family exists for or is it the other way around? The state takes as the plural state takes as its core to its existence that the families exist, that they are at the core and foundation of it, not that we’ll let them exist insofar as they produce good citizens.

(11:46):

For us, the state says we exist insofar as we make the complete community possible. So these families and local communities and states and religious associations can thrive. So the very core, when he’s listing off the values of the plural community, the very first value or the very first element of it is plurality. It’s based precisely on their being plural, a plurality of communities. So our constitutional order, for example, our constitution mentioned states something like 50 times. But the idea there are states, there are real things and those legislatures are there, they’re not going away. We have provisions that say the states cannot lose their senators, the states will sit as equals in the Senate, and that is a given. They will not lose their territory either by being combined with other states or being split up. That is core to the foundation. It’s in the document, the nation-state, the United States only exists insofar as the states exist.

(12:37):

And I take that a little further, and I say in my work, I’m trying to kind of delineate how it goes further than that. It’s not just the states that’s focused on because of the very nature of the United States Constitution is a document, but the First Amendment is getting at this plural community and extending it or insinuating that it extends out just what we call civil society. Now that language doesn’t really get going and really differentiated into the nineteenth century, but that it’s implicit and sometimes maybe even more than implicit and much of what is said in the Bill of Rights and taken for granted among the founders when they’re thinking about the state constitutional order and the federal constitutional order and what religion is and what families are. And in some ways they’re not articulating it fully, that full articulation comes later. But you get John Quincy Adams, for example, giving us as famous Lyceum address on the family in the Constitution of Massachusetts. But he says, we never said anything about the family, but that’s what we meant. In fact, nothing we did even made sense unless you realize that we were thinking in terms of the family’s legal unit.

John Grove (13:46):

So that transitions as well to, I think the next topic we want to talk about, which is how the freedom of association has fit in the American constitutional order and free association is an important, and it’s kind of a difficult concept too, if you’re following you, and I did a conference a few years ago where we were looking at some eighteenth, nineteenth century writings that Nisbet was influenced by. And one of the themes that I continue to recall from that conference was Nisbet, he liked the medieval world, he liked certain elements of the medieval world because you had this sort of social pluralism, but he also seemed to recognize that that was gone for what it was. And he also at times acknowledges too, there were severe limits to that where you have these guilds and other powers that exercised extreme amount of authority over people maybe too much.

(14:45):

So as you mentioned, the nation-state rises in part as sort of the liberator from all those things, but then it goes too far. And so one of the themes I remember thinking about a lot from that conference was how in this modern world where those authorities are still around, but they’re certainly not the same type of authority as they were in the medieval world. Things like church and family and things like that. And is that in the modern world, the sort of pluralism that Nisbet has in mind is coming about through free association. Right? So Tocqueville, what Tocqueville is describing isn’t exactly the medieval world, but it’s sort of the closest thing that the modern world has to offer. And so that makes the freedom of association essential to this vision in the sort of modern constitutional state. And so in the United States, we don’t have the phrase freedom of association in the Constitution. Exactly. But you were hinting at I think the ways in which our entire political order maybe just takes for granted the freedom of association. I know you have at least one thesis on the idea that the people sort of means associations in a certain way. Why don’t you elaborate on that idea?

Luke Sheahan (16:04):

Yeah. So I published a paper in American Political Thought 2024, and I argue there that the term, “the people,” as it’s used in the Bill of Rights seems to be in reference to the people as distinct from the states and distinct from the federal government, of course, but especially in reference to our institutions. So what I mean by that is we have, well, it appears five times in the Bill of Rights. The first time is in the First Amendment and it’s in reference to the Assembly Clause. So “the right of the people peaceably to assemble.” Now there’s a little debate over this Akhil Lamar says, well, this, when you hear the people, it means everyone. And so this must be a reference to a constitutional convention. The people can assemble a constitutional convention and redo the Constitution if we want to. The problem is it seems like the Assembly Clause was a reference to basically civil society groups.

(16:59):

That seems to be what they were after there. So the people and the singular is used as a reference to basically free associations. That’s what it’s whether Quaker groups, and there’s an interesting exchange and the first congress over the wording of the Assembly Clause, and it seems like there’s a reference made to Quaker groups, which would be non-political. So it wasn’t even a political advocacy group of any sort, but people who are assembling as a civil society group, they’re going to do something different and in their particularity. So yes, it’s all of us, but it’s all of us in our particularity. And then it appears in the Second Amendment, “the right of the people to keep in bear arms.” So maybe this is reference to all individuals being able to bear arms, but then it quickly moves into reference to militias, which were local institutions.

(17:45):

They were attached to townships in the northeast. So then it seems like, so the people we’ve got to reference to local community, people are referenced to voluntary associations, and then the Fourth Amendment, it’s the right of the people to be secure in their house’s, papers, and effects from unreasonable searches and seizures. So that is a reference to households. So we get “the people” appearing three times prior to the Ninth Amendment each time. One could argue, and I certainly point out in reference to households, our existence ensconced as we all are in households, ensconced as we all are in voluntary associations and ensconced as we all are in local communities. And so it doesn’t say that explicitly, but it’s the context in which that term arises. And then I point out in that paper, even when you think about the ratification of the constitution, it was by state convention, so the people ratified it, but they do it through state conventions, not state legislature, state conventions.

(18:33):

And the representatives, the delegates arriving at those conventions come from localities, depending on your state, how it was organized, but it was either county or town. So when the people voted to ratify the constitution, they do so by locality. Each locality gets a vote and then the majority in each state. But it’s an interesting dynamic there that we say the people ratified through these special conventions, not legislatures. When the people do something, it’s through their kind of special constitutional moments. But they were organized by locality to do so. And some of these localities were explicitly their own communities, especially in northeast the townships with the option of binding their vote so they could vote for the delegate and then they could further vote as a locality to bind the vote. I don’t know how common this was. I’m not sure. Any of us anybody knows, we do know eight towns in Connecticut bounds their vote to vote no.

(19:26):

So when we use the people instead of thinking it purely in terms of a collection of an aggregate of individuals or a majority of individuals, we might think of it as civil society. It seems to be that’s what they’re intimating at. Civil society is the real core of our existence that then can create governments both at the state and federal level and be a check on them. And my hook in that paper as I talk about the Tenth Amendment. So the Tenth Amendment use a negative conjunction between the reserve powers to the states and the people, so distinguishing between them. So federal government with powers, states with reserved powers and people with reserved powers. That’s why I say, well, if we think of the people as voluntary associations, local communities and households, it implies reserved powers in those institutions. Now, I don’t think that’s a slam dunk in terms of litigating in federal court, but it does contribute, I think to our understanding of constitutional theory and what role civil society plays in our constitutional theory.

John Grove (20:30):

Yeah, that’s interesting. Sometimes you’ll hear about, people will note that the ratification, it took place by state, by state rather than by national majority, but you don’t often hear it broken down even further. But that’s a good point that at those state conventions, the representation was coming from localities and not necessarily equal population representation across the whole state. That’s interesting. I’m also interested in that Second Amendment interpretation too, going down a little bit of a rabbit hole here, but because in DC v. Heller, so of course you had the big distinction, is it an individual, right, or is it a government? Right. Because the people who focused on militia were saying, oh, see, this is when the government is in control. But that’s interesting. You picked up this middle ground that militia doesn’t for them didn’t mean government control, it meant local association. Did anybody even remotely consider that in the big gun control cases?

Luke Sheahan (21:28):

Yeah, it doesn’t seem like, it doesn’t seem like that was really coming up. They were thinking. Yeah, exactly. You said in terms of as Nisbet would be the first to note that dichotomy, and I think one point about the gun control cases, it seems to me that what they were getting at, admittedly it’s a little vague in the language, but you have an individual right to carry a gun and defend yourself, but you have then a communal right to join with your neighbors and defend your community. I mean that’s what militias were. And then of course the state could call it the militias and defend itself. So this is why I think Nisbet’s plural community applies so well to the American order is they were conceiving of all these different levels that were interlocking. They weren’t necessarily virtually exclusive. So where does this right reside well in multiple levels?

(22:14):

I mean, how could it not? We aren’t just individuals, but we are individuals and we aren’t just members of local communities, but we are members of local communities. And so it seems to me that while not fully articulating and distinguishing between these things, it seems to me that the language and the bill of rights is kind of taking it for granted. And it will be later that you get Tocqueville and people really kind of laying out what they see as these contours. And we get a lot of the great work on civil society in the nineteenth century, but that it’s implicit earlier while not being fully articulated. And maybe another way to kind of get at that is through the idea of George Carey and Willmoore Kendall’s idea of the basic symbols of the American political orders. They talk about differentiation. The symbol comes first and then differentiation comes later as you really start to understand what’s going on. And it seems to me that we got a lot of that going on even in the 1600s, but it’s nineteenth century that we start to really lay it out and make these theoretical distinctions.

John Grove (23:12):

So I mentioned earlier that the constitution doesn’t say the freedom of association, but it does say the freedom of assembly. It doesn’t say that exactly either, but it says the right of the people too to freely assemble. How has the Supreme Court understood that, right? I know you would certainly argue that the freedom of association is implicit in that, right? But how has the court understood that and how has the court done when it comes to protecting freedom of assembly or freedom of association?

Luke Sheahan (23:42):

So the court has been mixed on this, so it’s not done a particularly good job. So for one thing in the nineteenth century, it links the Assembly Clause to the petition clause. So your right under the federal Constitution, according to the Supreme Court in the nineteenth century to assemble is if you’re petitioning the government, apparently you don’t have a federal right to assembly outside of that. That’s a highly dubious reading of that clause. The reason they do it is they look at the commas and the semicolons and I think make way too big of a deal. If you look at the drafts of the First Amendment and the first Congress, they’re swapping things in and out and it doesn’t seem like they’re really paying attention to the punctuation. I think that regularization of semicolons and colons, it just comes later. It’s just not what they’re thinking about.

(24:24):

So when they’re linking, as some people think they do, the Assembly Clause and the petition clause, they were swapping in a bunch of other phrases in and out. They just didn’t seem to think they were linked. You could only assemble if you’re petitioning. They seemed to think you could assemble for any reason. And also we better put in the petition clause because that’s something important that you’d be able to petition. And the history of the right to petition, of course is very, very important. And it’s why it shows up so much. And it continues to be important up until at least the 1840s. But the court in the twentieth century ends up dropping it. It doesn’t do a lot with it. It kind of gets it wrong In the nineteenth century, I’d say in the twentieth century, it just starts ignoring it. And I don’t think a majority opinion has even mentioned it since in any substantive way since like 1983 or something like that.

(25:12):

We get Justice Thomas in 2021 in a concurrence saying, we really need to bring it back because it’s in the text and we need to start dealing with it. But it was a concurrence in the Bonta case in 2021, which is good. I mean, that might be how it’s wiggling its way back in. But the Supreme Court instead lands on a nontextual right, the right of association problem with its origin is it ends up being really ambiguous. So 1958, it defends the NAACP (9-0) the right of the NAACP, but it says, well, they have a right to associate and it links it to democratic government, it locates it in the Fourteenth Amendment, the liberty of the Fourteenth Amendment, not the First Amendment in 1961, it does say that it’s in the First Amendment. Of course the wording isn’t there, but it says it’s implied because how can you speak unless you can assemble with others?

(25:59):

That’s usually the case. In fact, that was actually part of the debates and the first Congress was assembly must be applied because you can’t speak to somebody unless you can assemble with them. You can’t worship as you can assemble it. So it’s implied and we don’t even need to include it, and then they decide they better include it or else you could undermine all the rights without including it. But anyways, the court focuses on association and ends up linking it to speech. So it says the NAACP has the right because of democratic government. How do you bring about democratic change unless you can assemble or associate to do so? Eventually in 1984, it calls this expressive association you can associate to express views. And then it says, of course the makeup of your group matters because that’s part of your expression. But it very much hones in on linking it to expression. You have a right to associate if you’re expressing a view and implies that you must be participating in democratic government in some broad sense. And then 2010 and the infamous CLS v. Martinez case, the court says, well actually this Christian group can’t discriminate in membership based upon its religious purpose because hey, look, everyone has free speech, so you can still engage in free speech. You can do all the things you can do. Why would you need to only associate with others that agree with your group?

John Grove (27:23):

So that’s a very, just going back to Nisbet very briefly, that’s a very political centric understanding, right? It’s only valuable, it’s only protected if you are participating in the activity of the centralized nation-state. That’s an interesting connection. You mentioned Clarence Thomas’s concurrence. Do you see a path towards a broader recovery of the freedom of association through the Assembly Clause, or do you think it’s pretty entrenched in that thinking about it in terms of First Amendment?

Luke Sheahan (27:58):

Yeah, so I think it could be through the Assembly Clause. So I think we could, it’s in the text. You have originalists on the Court. So they very well could say, we’ve got this right. And John Inazu, it’s Washington University in St. Louis Law school. It’s pointed out, if we sue under the Assembly Clause, the court can just sidestep all its expressive association jurisprudence. So it won’t have to make say, well, this group is fraternal, it’s not expressive and try to, well, it’s expressing a fraternal view that doesn’t have to play those language games. It just says we haven’t textual, we haven’t referenced it. But that means we started got to start unpacking it. And so he was on the panel, we’re on a panel together for the Notre Dame law Review. And kind of part of the premise of what we’re approaching is we have a textual and we can kind of sidestep and start doing an historical analysis. The court right now is very interested in text and tradition. So what is the historical background of the Assembly Clause? So this might open a way on which we can think about the Assembly Clause. So the court’s jus prudentially open to that approach. And then we have it in the text so we don’t have to necessarily lock ourselves into some kind of narrow doctrines. The courts developed.

John Grove (29:13):

So I know you’re working on that, right? The text and history and tradition of the Assembly Clause. So can you sort of limb the outlines of that for us? How do you understand the basic trajectory of that tradition and history?

Luke Sheahan (29:24):

The Assembly Clause is there in the text. So that’s it. And if you think about what the text means, so we can look at some dictionary definitions at the time Johnson’s dictionary and Webster’s dictionary, it just means people associating for a purpose could be spontaneous. So this can of it in terms of protests or something like that. But it also can be referenced to organizations. And it says that in those dictionary definitions, you can’t make too much of dictionary definitions. Of course, constitutional principles can go beyond them naturally, but it’s a good place to start. And so in my article, I start there, so look at the dictionary definitions, at least gives us a place to start. And it looks like it protects organizations, associations as we would call them. So we got the text down, I think that’s fair. And then the history and tradition, the right to assemble has clearly been very important.

(30:13):

So Tocqueville, he observing, man, these Americans, they assemble all of the time, they assemble all the time, they do all sorts of things through these associations freely, voluntarily. So that is free assemblies, free associations. And the other wrinkle here is Kevin Butterfield’s 2015 published a great book on the rise of associations in the legal sense. So what are these things that Tocqueville is looking at in the 1830s, but how did they come about and what were the debates about? And there was a big debate, should we actually have official associations or are they kind of dangerous to undermining our republic? So you can think of the whole fiasco over the Society of Cincinnati, but as the debate plays out and as the legal recognition plays out clearly the idea that we should have associations that are legally recognized and that that’s a completely legitimate way to go about having friendships, think of all the fraternal organizations that are formed and all these sorts of things, that’s what wins out.

(31:12):

That’s our tradition. That’s what we do. And so I say we have a long tradition of having these, and it goes back actually much deeper than you’d think into the eighteenth century. And so I actually link the rise of the free assemblies and free associations that really start to come about throughout the eighteenth century and the really in the nineteenth century into the townships. So you have all these almost geographic free associations is what’s kind of what they are. So why did these new towns spring up all over Massachusetts and Connecticut? Because people started them. They just went out and started a new town. Usually they had a theological disagreement with their pastor in their old town, but it kind of looks like a voluntary association. There’d be, I don’t know, 120, 150 people in each of these towns. But then as you get into the eighteenth century, they start to grow.

(32:02):

These towns get bigger, especially as you get into the 1790s and early 1800s. And then you see crop up all of these voluntary associations. So I say, well, listen, town’s really important. They each had a covenant and then they were bound up connected to the state or to the colonial order in this complicated way. I say the plural constitutional community, that’s my term for what the United States Constitutional order is. You see it back in the 1600s. So you see these colonies that are a compact among compacts. So think of the fundamental orders of Connecticut. There’s these towns with their compacts. Then there’s this colonial compact, and there would be colonial compacts would arise as well. And they were interlocking in complicated ways, and they recognized the legitimacy of each level of the compact. Each of those compacts at the town level, they were legitimate.

(32:50):

The colonial level compacts were legitimate. And then the pan colonial compacts were legitimate and they just saw them as interlocking. They’d have kind of multiple meetings to try to sort things out when they didn’t quite get it right the first time, but they just saw that this is what you do. You meet and you form a compact and it’s limited to certain matters. And there’s another compact that’s bigger limited to other matters. And I say, and that’s what each of these, Butterfield makes this point, that’s what all of these early nineteenth century associations do. They start, they form a constitution, a compact, and they talk about what they’re going to do. They’re just like the towns. That’s what the towns did. They’re just like the churches have been doing for hundreds of years by that point for 200 years by that point, just what the towns have been doing for 200 years, just what the colonies have been doing, just what the states did, what their constitution, this is the form. And they take the same constitutional form that we see elsewhere. And what we recognize is our constitutional tradition. So I say the court has said, when we talk about constitutional issues in terms of history and tradition, we’re looking for does it fit into our system of ordered liberty? I say, this is our system of ordered liberty is having these interlocking compacts. And you see it all the way we recognize it in terms of state and federal constitutions. We need to take seriously the constitutional status of free associations under the Assembly Clause.

John Grove (34:07):

So that links back to what you were saying earlier about the constitution’s meaning of the people you think of, think two of the Tenth Amendment two and it says reserved to the states or to the people. A lot of times we see that as read that as individuals, but it could also just be the people as associating people, right? People who are forming all sorts of associations. It could mean localities and so forth. You’ve also been hard at work editing a two volume collection of essays on this theme, freedom of association in Theory and freedom of association applied. This is with Kenneth McIntyre. Tell us a little bit about those two volumes and how they’re advancing this sort of work.

Luke Sheahan (34:44):

So freedom of association has not been treated particularly well in academic work. So the last time we had a volume on freedom of association I think was Amy Gutmann’s from 1997. And that volume is good in certain ways. She has an all-star lineup of scholars, but many of them are not particularly sympathetic to freedom of association with a few notable exceptions. So we wanted to put together some edited volumes from the perspective of really appreciating what freedom of association brings to the table and seeing that we can kind of suss out from various thinkers. Adam Smith, Michael Polanyi, I write on Tocqueville and Nisbet treatments of freedom of association and its variety and how really important it’s in theory thinking through what it means. And we have various thinkers who have done that, but they don’t seem to have really made a splash in the wider world, or at least they don’t continue to today.

(35:35):

So von Gierke, for example, thinking about the corporate personhood and very seriously, what would that would mean? He makes a splash with Maitland. And I’m not sure though that anyone quite appreciates the profundity of what he was saying, even though I quibble over certainly some of what he’s saying. But I don’t think it’s necessarily the best way to describe associations. But he’s understanding them is something that’s important and that we have to somehow figure out how to appropriately legally recognize. And he’s trying to wrestle with that, their reality. And so we wanted to put together these volumes that could explore a number of thinkers who have treated associations either good or bad. So we have a chapter on Rousseau in there who did, not associations at all, but thinking seriously about what it means and how we can bring it back into our understanding of well, constitutional order and political order.

John Grove (36:29):

Well, that’s great. And on that note, then, hopefully all this work you’re doing on bringing back this and reviving our understanding of this essential but often overlooked and forgotten right. You will be featured in the pages of Law & Liberty a little bit more regularly. You’ve been here plenty of times and on the podcast a couple of times, but welcoming you as a contributing editor at Law & Liberty and in large part because we are all about this sort of thing, right? All about this sort of liberty in community regulated by law, and I think it’s a great fit for our pages. So those of you who are intrigued by this conversation, hopefully we’ll be seeing a lot more of these themes from Luke over the next few months and years. So welcome officially to the team.

Luke Sheahan (37:16):

Thank you. I’m glad to be here.

John Grove (37:18):

Alright, well thanks a lot. Make sure to check out those two edited volumes with Kenneth B. McIntyre on the Freedom of Association and Luke’s previous book, one of his other books, Why Associations Matter. And keep an eye out for the new work he’s going to be doing here at Law & Liberty. Thanks for joining us.

Luke Sheahan (37:33):

Thank you.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.