“GUILT BY ASSOCIATION” AND THE POSTWAR CIVIL LIBERTARIANS

Abstract

In recent years, the constitutional freedom of association has assumed a relatively low profile. Today, the most extended discussions of the right consider it as a second-order countervailing claim in civil rights cases involving questions of identity and the right to exclude. This article provides a brief overview of the right at a time when it was one of the most widely discussed, first-order constitutional rights, and when those discussions centered not on the right to exclude but on the question of “guilt by association.” The article provides a sampling of the way that right was considered in the immediate post-World War Two years in the writings of some of the era's most prominent civil libertarian thinkers – Leo Pfeffer, Milton Konvitz, Robert Cushman, Henry Steele Commager, Zechariah Chafee, Jr., and Sidney Hook. These writings demonstrate that doctrinal development concerning the right was driven by its implication in two of the major political issues of the day: domestic security at the height of the Cold War and civil rights. The article concludes by arguing that, in the aftermath of the September 11 attacks and the ongoing fight against terrorism, free association questions are likely to assume renewed prominence. It argues further that, in a contemporary context, those thinking about the most pressing freedom of association questions would profit by looking less to the more recent discussions of the right as a matter of the right to exclude, and more to the highly-relevant discussions of “guilt by association” by the currently less well known mid-century civil libertarians.