THREE ESSAYS ON CIVIL ASSOCIATIONS IN AMERICA A Dissertation submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Government By Justin D. Rattey, M.A. Washington, D.C. April 22, 2020 Copyright 2020 by Justin D. Rattey All Rights Reserved ii THREE ESSAYS ON CIVIL ASSOCIATIONS IN AMERICA Justin D. Rattey, M.A. Thesis Advisor: Richard Boyd, Ph.D. ABSTRACT My dissertation includes three articles united by a focus on the normative value of civil associations. In the first article, I offer a novel interpretation of Ralph Waldo Emerson’s political theory. Emerson sometimes proclaims radical individualism and a deep antagonism to associational living. Other times—especially in the context of abolitionism and reformism—he urges solidarity and even personally embraces membership in associations. Juxtaposing Emerson’s political theory with that of Alexis de Tocqueville, I argue that we can understand Emerson as a unified, democratic political theorist through an appreciation of his consistent embrace of what I describe as extra-associational moral authority. Through both his apolitical and his political writings, Emerson consistently appeals to a source of moral authority beyond society. The second article focuses on two values underlying the Supreme Court’s Freedom of Association jurisprudence: associational freedom and equal access. While associational freedom justifies a right of associations to exclude unwanted people (such as the Boy Scouts’ right to exclude gay scoutmasters), equal access demands greater inclusion in associations (for example, by requiring that the Jaycees admit women). I defend a novel approach to maximizing the twin ideals of associational freedom and equal access: what I call ‘heckling analysis.’ I argue that courts should consider whether a person seeking admission into an association threatens to disrupt the association—in other words, whether the person seeking admission is a heckler. iii Finally, the third article focuses on a specific association: the American petit jury. There are two Sixth Amendment jury rights: the individual right of the criminal defendant, and the collective right of the community to adjudicate allegedly criminal behavior. After exploring the history of the two jury rights, and describing some of the corollaries of each right, I consider some of the possible implications of this analysis for different constitutional philosophies: Dworkinian moral reading of the law, constitutional pluralism, and originalism. Given the occasional tension between the two rights, the analysis in this article will enable legal practitioners to meaningfully debate issues and proposals that implicate one or both of the jury rights. iv ACKNOWLEDGEMENTS I am grateful to Richard Boyd, Joshua Cherniss, and Lawrence Solum, for their time and service on my dissertation committee. Their willingness to discuss the subjects in this dissertation, feedback on early drafts, and support throughout the writing process are reflected in the final product. Many of the ideas in this dissertation were also borne out of my conversations with other professors: Randy Barnett, Nolan Bennett, Bruce Douglass, Tara Helfman, Marc Howard, David Luban, Susan McMahon, Naomi Mezey, John Mikhail, Joshua Mitchell, Louis Michael Seidman, and William Treanor. Those conversations immeasurably impacted the nature of, and arguments in, this dissertation. Professors Mikhail, Seidman, and Treanor reviewed various parts of this dissertation and their feedback was critical to the development of the parts they reviewed. I am thankful to The Georgetown Law Journal and the members of the Volume 108 Articles Committee. My service on that Committee made me a more thoughtful writer, and I am lucky to consider the members of that Committee my friends. I also could not have completed this project without the support and resources provided by Department of Government at Georgetown University. Finally, I owe much to my family and friends. My father and mother, Ron and Phyllis Rattey; my grandfather, Morris Range; my brothers, Connor and Isaac; my girlfriend of many years, Alexandra Rosen; and, all the friends from before and during this academic endeavor provided emotional and spiritual support without which I would not be where I am. I dedicate this project to all of them. v TABLE OF CONTENTS Keeping the “Perfect Sweetness … of Solitude”: Toward a Unified, Emersonian Political Theory ............................................................................................................................... 1 I. Introduction ................................................................................................................... 1 II. Tocqueville’s Moral Associations ................................................................................. 7 III. Emerson’s Extra-Associational Moral Authority ........................................................ 15 IV. Emerson’s Democratic Political Theory ..................................................................... 37 V. Conclusion ................................................................................................................... 42 Associations and Hecklers ............................................................................................................. 44 I. Introduction ................................................................................................................. 44 II. Associational Freedom and Equal Access ................................................................... 50 III. Heckling and the Heckler’s Veto ................................................................................ 66 IV. Associations and Heckling Analysis ........................................................................... 73 V. Conclusion ................................................................................................................... 93 Whose Jury: Mediating Between the Competing Individual and Collective Jury Rights ............ 95 I. Introduction ................................................................................................................. 95 II. Individual Versus Collective Rights, Generally ........................................................ 104 III. Origins and First Principles ....................................................................................... 112 IV. Corollaries of the Individual Jury Right .................................................................... 141 V. Corollaries of the Collective Jury Right .................................................................... 152 VI. Implications for Constitutional Theory ..................................................................... 167 VII. Conclusion ................................................................................................................. 176 Bibliography ............................................................................................................................... 178 vi KEEPING THE “PERFECT SWEETNESS … OF SOLITUDE”: TOWARD A UNIFIED, EMERSONIAN POLITICAL THEORY I. IntroduCtion In one of Ralph Waldo Emerson’s most famous essays, “Self-Reliance,” he proclaimed that “[t]o be great is to be misunderstood.”1 If Emerson was right, he ranks among the greatest. Within just a few decades of Emerson’s death, he was both praised as “The Philosopher of Democracy” by John Dewey and scorned as a “Nihilist” by Charles Gray Shaw.2 In “Self- Reliance,” Emerson celebrated solitary individuality, claiming that “[i]t is only as a man puts off all foreign support and stands alone that I see him to be strong and to prevail.”3 But just a decade later, in his “‘Address to the Citizens of Concord’ on the Fugitive Slave Law,” Emerson expressed solidarity with the political cause of abolition, saying, “I am a Unionist as we all are.”4 Conflicts such as this one between Emerson’s apolitical and political positions permeate his scholarship. In recent decades, political theorists and historians have sought to reconcile the disparate threads of Emerson’s writing. George Kateb, for example, understands Emerson as a maturing and evolving scholar. Kateb suggests that Emerson became more pragmatic with age, accepting the necessity of political solidarity and associational membership to accomplish Emerson’s larger political aim of enabling greater individuality by more people.5 Robinson Woodward- Burns offers a slightly different perspective, arguing that Emerson’s intellectual development 1 Ralph Waldo Emerson, “Self-Reliance,” in The Essential Writings of Ralph Waldo Emerson, ed. Brooks Atkinson (New York: Modern Library, 2000), 138. 2 John Dewey, “Emerson—The Philosopher of Democracy,” International Journal of Ethics 13, no. 4 (1903): 405– 13, 412; Charles Gray Shaw, “Emerson the Nihilist,” International Journal of Ethics 25, no. 1 (1914): 68–86, 70. 3 Emerson, “Self-Reliance,” 153. 4 Ralph Waldo Emerson, “‘Address to the Citizens of Concord’ on the Fugitive Slave Law,” in Emerson’s Antislavery Writings, ed. Len Gougeon and Joel Myerson (New Haven: Yale University Press, 1995), 68. 5 George Kateb, Emerson and Self-Reliance (Lanham, Md.: Rowman & Littlefield, 2002), 178. 1 reflects his endorsement of a particular mode of living: the individual must be alone before she is capable of political engagement.6 Rather than a pragmatic concession to the realities of political change, Woodward-Burn’s