The best test of truth is the power of the thought to get itself
accepted in the competition of the market. The Constitution
is an experiment, as all life is an experiment.
Justice Oliver Wendell Holmes
I’ve been looking through the Constitution for a place where it says the President can break the law. I couldn’t find it. What I did find, tucked in the First Amendment between freedom of speech and the right to petition the Government for a redress of grievances, is “the right of the people peaceably to assemble.”
Like so much of the Constitution, the right of assembly was a reaction to the abuses committed by the Crown, including how British authorities treated “the people out of doors.” The Riot Act of 1714 provided that local officials could disperse groups of more than twelve by reading certain words concluding with “God save the King.” Failure to heed the warning was a felony.
James Madison was aware of this history when he wrote the First Amendment, but Americans valued the right to protest long before then. As we all learned in grade school, in 1773 the Sons of Liberty reacted to “taxation without representation” by getting together and dumping tea into Boston Harbor.
Just as freedom of religion, speech, and press are subject to so-called “time, place, and manner” restrictions, so too the right to assemble is not absolute. We need look no further than the current public health emergency, which has prompted state and local governments to limit the size of gatherings. The Supreme Court recently upheld California’s restriction on the number of people who could assemble in church. Chief Justice Roberts, joining the four liberal Justices, declined to second-guess elected state officials, noting that similar or more severe limits were also placed on lectures, concerts, movies, sports, and other events where people gather in close proximity for extended periods of time.
But nothing in that decision dilutes the constitutional right to assemble. When a Minneapolis police officer killed George Floyd on May 25, millions of people saw the video, heard the words “I can’t breathe,” and took to the streets. “Black lives matter” has become part of the national consciousness, just like “we shall overcome.”
Not to sugarcoat our recent experience. Some demonstrators crossed the line, committing vandalism, looting, and random acts of violence. Hooligans in Washington set fire to the basement nursery of St. John’s Episcopal Church on H Street. That is the ugly side of what we have been living through, and it is unlawful and inexcusable.
But at the same time, no one should excuse the President’s shameful removal of demonstrators from Lafayette Square, just across Pennsylvania Avenue from the White House, on June 1. That Monday night, Trump announced from the Rose Garden that “we need to dominate the streets” and—with help from his loyal henchman Attorney General Barr—had the public square cleared of peaceful demonstrators. Police on foot and on horseback pushed the protesters out of the park and down H Street, using smoke canisters, pepper spray balls. and flash bang grenades.
All this so that Trump, accompanied by his daughter Ivanka and several flunkies, could walk over to H Street and stand outside St. John’s for a photo op holding a bible.
It would be one thing if police had dealt with demonstrators who were not behaving “peaceably.” But that was not the President’s concern. His use of the word “dominate” says it all.
The First Amendment right of assembly doesn’t take sides. It protects demonstrators protesting police brutality and KKK members promoting white supremacy in equal measure. Exercising the right doesn’t cost anything. All it takes is a person’s physical commitment, what NYU law professor Burt Neuborne calls “First Amendment sweat equity.”
Such physical commitment is as active now as at any time since the 1970s, and it shows no signs of abating. Crowds continue to gather everywhere, in New York and Washington, in cities and towns and villages across the country, and even abroad. Hundreds of people recently gathered peaceably in Keene’s Central Square holding “Black Lives Matter” signs. No constable showed up to read the Riot Act. Instead, local police offices held “I can hear you” signs.
Do we need new laws? Maybe, but we already have some good ones, beginning with the “experiment” that is the Constitution. The President and the Attorney General might want to read the First Amendment and then look at Article VI, Clause 2, which states, “This Constitution, and the Laws of the United States … shall be the supreme Law of the land.”