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Part I will sketch the current contours of the right of association, a right limited to "expressive" and "intimate" association, and will describe the government's attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court's limitation of associational rights to expressive and intimate associations and the government's attempt to distinguish association from conduct are unworkable, inconsistent with the Court's own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, borrowing from the Court's jurisprudence with respect to another potentially limitless but critical constitutional right, the right of symbolic speech. I will argue that the focus of a jurisprudence of association ought to be on association, not expression or intimacy, and that it should protect association in its physical manifestations as well as its abstract essence. The critical inquiry should not be whether an association is expressive or intimate, nor whether the individual affected is engaged in conduct or pure association, but rather whether the government's regulation arises from or is targeted at the associational character of the conduct. Where government seeks to regulate conduct without regard to its associational character, its actions should be subject to relaxed review, but where government seeks to regulate conduct because of its associational character, its actions must satisfy heightened scrutiny. Only that approach, which mirrors the Court's jurisprudence of symbolic expression, does justice to the freedom of association.


Publication Citation

1999 SUP. CT. Rev. 203-252