Members Only: the Right to ‘Private’ Associations

The Constitution guarantees freedom of assembly, which flows from the “right of the people peaceably to assemble” clause of the First Amendment. The Supreme Court has interpreted that clause to affirm the freedom of association. Inherent in the right to associate is the right not to associate. That can entail the right to bar selected persons from one’s company -- the right to form private associations.

In June 2009, the Wall Street Journal ran “Private Clubs That Aren't Private Under the Law” by Nathan Koppel. He quotes Andrew Koppelman, a constitutional-law professor at Northwestern University School of Law: “When an association reaches a certain size and importance, the public has a legitimate interest in what goes on inside them.”

By “public,” Koppelman surely meant government, not the People. And the “legitimate interest” that government would have in large associations is in making them even larger, as in throwing open their doors to the forced acceptance of “outsiders” that association members may already have decided against. But government always knows best:

In deciding whether a club is private, courts often consider how selective it is in choosing its members. Courts often are loath to allow clubs to claim private status if they open their doors to virtually all comers but exclude people by race or gender, discrimination experts say.

At issue is whether a club can be seen as a “place of public accommodation.” So a club needs to be ultra-discriminating in choosing its members if it doesn’t want to get hit with an anti-discrimination lawsuit and lose its status as “private.”

But whence do we Americans get the “right to privacy”? There is but one instance of the word “privacy” in The Federalist, in No. 69: “privacy in the mode of appointment by the governor of New York.” But that doesn’t pertain to any general right of privacy. There’s no instance of “privacy” in the original Constitution and its 27 amendments. There is one instance of “private” in the Constitution, in the Fifth Amendment, but it concerns “private property.” In 1973, the Supreme Court “established” the right to privacy in its decision in Roe v. Wade. For justification, Justice Blackmun adduced the Fourteenth Amendment.

The term “privacy,” however, doesn’t seem to be entirely appropriate when it’s applied to associations, that is, groups. After all, when you’re associating, you’re not being entirely private. Perhaps a better term is “exclusivity.” If so, the issue in “private” clubs would be: Should associations have the right to exclude certain persons from membership?

Let’s say there’s a “private” club that doesn’t have any Jews in it, and this is brought to the attention of the feds. If the club disallowed membership to Jews it would be repellant to most decent Americans, but should it be illegal? Should the club be required to shut down or accept Jews? But let’s say the club doesn’t have a rule to bar Jews and the only membership requirement is that one be sponsored by a member in good standing. And what if in addition to their rule of sponsorship, they have a rule that membership can never exceed a certain number and at the moment the club has that many members. Should the club be required to make its next member a Jew or else shut down? Just how far into the affairs of “private” associations should government be allowed to intrude?

Should associations have the right to keep private the criteria by which they select members? If not, then they might change their criteria to subjective ones that are less subject to challenge, such as: we just didn’t like him, he didn’t seem to fit in, he had atrocious table manners, or we didn’t like the cut of his jib.

Some associations are based on an allegiance to particular ideas or ideologies which form their criteria for membership. The government shouldn’t be allowed to force such associations to accept members who don’t share their views. There is one such type of association that has affected the very character of our nation. Some say this association is public, while others say it is or should be private, and yet others say it is a mix of public and private. The association to which I refer pervades the entire country; it is the political party.

But in today’s America, what exactly is a political party? What do the terms “the Democratic Party” and “the Republican Party” actually refer to? Does each term refer to a discrete, legal entity, such as an entity that can be sued? Or, does each term refer to a cluster of things, like the terms “the Left,” or “the West,” or “Christendom”? Aren’t the actual entities that make up our two major parties their national, state, county, and precinct committees? Rather than a party being a single entity, or being the voters, or being party-identified public officials, aren’t those linked associations, the committees, the actual party? If so, a political party in America is an association of associations.

Shouldn’t an association that is based on ideas, especially a political party, have the right to reject a prospective member merely because they don’t like the way he thinks? Without the freedom to determine its membership, an association based on an idea will become wishy-washy, too heterodox, and might as well shut down. Yet, government, especially the states, highly regulates political parties, those associations of associations. So, should political parties be entirely private?

The American left wants to be able to poke its roseate nose into everybody’s business. For the Left, there is no sphere of “privacy”; the individual cannot exclude others from his association. For the “useful idiots” that the Left uses and exploits (mainly youngsters), everybody is welcome; let in a million unvetted Syrian “refugees,” the rich will pay for their upkeep. For the Left, the government should force MENSA to accept stupid people; the Knights of Columbus should be forced to accept atheists and Baptists; private men’s clubs, if there still are any, should be forced to accept women and hermaphrodites; little girls should be forced to urinate in the company of shemales and transexuals (both post-op and pre-), dogs should be forced to lie with cats, lions with hyenas, and all will be sweetness and light, don’t cha know, because it’s One World, baby.

The Left not only wants to regulate your associations, but your inner life, as well. It is the Left that has given us “thought crimes.” For the Left, the right to privacy seems to extend only to pregnant women. Although the right to privacy gives a woman the legal cover to snuff out the life of her unborn child, at least up to viability, privacy does not extend to one’s most private thoughts: one’s diaries. (See “Dear Diary -- Can You Be Used Against Me?” by Daniel E. Will, which dealt with the case of Senator Bob Packwood and his sexual imbroglios).

Maybe we need an amendment to the Constitution that more completely spells out the right to privacy and how it affects the freedom of association, because sometimes it seems that in America “the private life is dead,” (video).

Jon N. Hall is a programmer/analyst from Kansas City.

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