The First Amendment specifies that “Congress” shall make no law interfering with the right of citizens “peaceably to assemble.” The Bill of Rights of the State of New York contains no such provision. I have no legal training but I deplore admitting that it sounds to me as if the city police of New York faces no constitutional impediment when it orders the “Occupy” movement to stop camping on that private park where they have been for weeks.
I deplore this reading of the law because I believe, by instinct, and possibly by a common misreading of the Constitution, that the right of all and any Americans to assemble is central, absolute and all too often stepped on by local authorities and by petty tyrants. All too often, I see locally or, indirectly, everywhere through the national press, the nuisances crowds create used to interfere radically with what I take to be the right of assembly.
Whenever this happens, it disturbs me that many of my fellow conservatives seem to buy the authorities’ reasoning. Here, locally, in Santa Cruz, the reasons local power gives to begin dismantling the “Occupy” encampment are fire risk and public health. The way I understand it, this does not make moral sense to me. I don’t like the “Occupy” crowd, I have expressed why in previous postings.
But my dislikes have nothing to do with my understanding of the guarantees under which we live. Or they should have nothing to do with this understanding.
I am not against repression but we live in a legal tradition that predates the American Constitution by centuries. In that tradition, one can only be punished for specific acts that have to be pre-defined as specifically illegal. “You annoy me” does not count!
it seems to me. And there can be no collective punishment under that tradition.
Accordingly, “Occupy “ demonstrators can be cited individually for littering in a manner that creates a fire hazard. They can be cited for urinating and for defecating in public places. They can be cited for making loud noises. For all I care, they can be cited for spitting on the sidewalk.
They should not be forced by the threat of legalized violence to stop exercising what I think is their right of free assembly. The argument that the relevant government entity does “not have the resources” to stop them individually from acting in a disgusting manner is especially objectionable. It’s objectionable because it plays on good people’ sense of decency to cause them to forget or to put to sleep their ideal of constitutional government.
A society of law is not only for my friends and for people I approve of. Right?
Update: 11/16/11: I read in the Wall Street Journal today that the owner of the Manhattan park from which the protestors were evicted requested the eviction. That changes everything about that particular situation, of course. It does not invalidate my constitutional musings.
[Editor's note: this essay first appeared on Delacroix's blog, Facts Matter, on November 15th 2011]