“To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not an extended judicial disquisition on the meaning of early American freedom of association or expression.

Montgomery was one of several cases that resulted from popular protest during the Whiskey Rebellion, specifically the raising of liberty poles in sympathy with Western opponents of the unpopular tax. Yet, from the perspective of a new constitutional historicism, an approach to the constitutional past that unites elements of a traditional top-down, court-centered narrative and the bottom- up perspective inspired by social history and cultural history, Montgomery is precisely the type of case that can be most illuminating. Indeed Montgomery provides a perfect occasion to engage in a form of historically grounded “constitutional ethnography.”