On August 15, 1789, the First Congress met to discuss the proposed Bill of Rights. On the agenda for the day was a draft of what we now call the First Amendment, but which was their Third Amendment. It was proposed by a Select Committee, based in significant part on an earlier proposal written by James Madison. One of its two clauses provided for four separate and distinct expressive freedoms—apart from religious freedom, which was originally located in a separate clause. The four expressive freedoms were speech, press, the right of the people to assemble and consult for their common good, and petition. Each of these freedoms had its own history, content, and rationale.
Theodore Sedgwick, a Federalist representative from Massachusetts and a first-rate lawyer, was the first to speak. He objected that the protection for freedom of speech made it redundant to spell out the rest of these rights, and particularly the right to assemble:
[W]hat, said he, shall we secure the freedom of speech, and think it necessary, at the same time, to allow the right of assembling? If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question . . . .
It was inappropriate, he argued, for the House to spell out the details once a basic right has been secured. “[I]t is derogatory to the dignity of the House to descend to such minutiae”; “he feared it would tend to make them appear trifling in the eyes of their constituents . . . .”
John Page, a Jeffersonian Republican from Virginia, disagreed with Sedgwick. Freedom of assembly was not a thing that never would be called in question. On the contrary, he reminded Sedgwick that “such rights have been opposed,” that “people have also been prevented from assembling together on their lawful occasions.” Page is referring to William Penn, who was prosecuted for unlawful assembly for preaching to a Quaker crowd on Gracechurch Street in London. (The location of Penn’s speech is significant; it was on a public street.) Everyone in the room at that time would have known the story of Penn’s prosecution, though it is little remembered today.