미국헌법상 집회의 자유의 초기형성

Abstract

This study deals with the early development of freedom of assembly in the United States. In keeping with the right of petition as it was guaranteed in the United Kingdom, freedom of assembly was widely permitted in the colonies of the Americas. Then, during the national foundation of the U.S. such freedom was codified into law by the First Amendment.

Freedom of assembly primarily originated out of popular sovereignty in relation to the political system of republicanism. This was natural since the U.S. was founded as a nation without a monarch after its independence from the U.K. Because representatives of the people gathered together for the Constitutional Convention, assembly formally associated with popular sovereignty. Therefore, freedom of assembly, linked with the right to petition, had the characteristics of a right claiming to the government while it had the features of political rights, related to popular sovereignty. Freedom of assembly was understood in this manner during the twentieth century.

Such freedom of assembly has developed through precedents set by the Supreme Court. The clearest examples are: United States vs. Cruikshank in 1876, where constitutional freedom of assembly was dealt with explicitly for the first time; DeJonge vs. Oregon in 1937, which presented general accounts about constitutional freedom of assembly along with the view that freedom of assembly, freedom of speech and freedom of the press all have common ground; and Hague vs. Committee for Industrial Organization in 1939, which paved the way for the public speech theory.

Constitutional freedom of assembly in the U.S. is more than an ornament to the legal provisions for democracy. Rather, it plays a role of claiming freedom of association which heightens the effect of speech or assembly, and from which right to privacy is derived. The provisions on freedom of assembly generate freedom essential to a free and democratic system. In this light, the early development of freedom of assembly in the U.S. does not reflect simply a history of accepting the Constitution as well as a trend of provisions. As with other areas of the U.S. Constitution, by examining freedom of assembly, we can identify the history of constitutionalism of the U.S.