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criteria for a proper application of the equity of the Bill of Rights under Madison’s Ninth Amendment safety net. It is analogous to the textual right of free assembly, harmonious with the rest of the First Amendment’s text, and crucial to the story of the evolution of a democratic idea that is the organizing principle of Madison’s First Amendment. In 1958, protection of the NAACP against hostile attacks by Alabama was an essential democratic way station for the evolution of the luminous political idea that ended American apartheid—a way station that was not adequately protected by the textual protections of speech, press, or physical assembly.
    Unfortunately, instead of deploying freedom of association in defense of robust democracy, the Court has used it as a device to frustrate efforts to broaden democracy. For example, the Court has refused to recognize voting and running for office as quintessential exercises of First Amendment political association, leaving both fundamental building blocks of self-government to fend for themselves in the rough and tumble of partisan politics, weakly protected by the Equal Protection Clause. To make matters worse, the Court has twisted associational freedom to treat the nominating procedures of the Republican and Democratic parties as hermetically sealed exercises of like-minded people, as though a small group of ideologically identical neighbors were meeting to choose a spokesman. While the two major parties do differ in philosophy and program, each is hardly a sealed group of like-minded citizens. Rather, as in any complex modern democracy using “first-past-the-post” elections in defined constituencies, the two parties function as competing coalitions of loosely connected interests, open to—indeed, eager for—outsiders who wish to affiliate, however loosely, in an effort to cobble together a winning electoral majority. The Court’s erroneous fixation on the ideological boundaries of the major parties has caused it to block efforts to open their nominating processes to the entire electorate. When California opened them to the whole electorate, voter participation spiked by more than 10 percent, and moderates won a fair share of nominations. After the Court’s majority had explained why letting outsiders help choose the nominees violates party members’ free-association rights, participation in California primaries plummeted, and the extreme ideological wing of each major party retook control of the nominating process. In short, the Court has invoked freedom of association not to broaden democracy, but to turn too many primaries into playgrounds for extremists.
    Recognizing a democracy-friendly First Amendment would require the Court to take a second look at the function of big-tent major parties in a mass democracy. Once the two major parties were recognized as vaguely defined, shifting coalitions, the Courtwould strike down yearlong ideological waiting periods for voting in a major-party primary but uphold efforts to open the nominating processes to the entire electorate.
    The Court’s failure to consider the democracy-reinforcing function of freedom of association has also made a shambles of the law governing minor parties. In a complex modern democracy, minor parties rarely elect candidates. By definition, they lack the mass support needed to win an election. But they do play the crucial function of injecting new ideas into the political process, forcing the major parties to react, by either assimilating them into the party platform or urging their rejection by the electorate. Freedom of association, properly understood as reinforcing democracy, could protect minor parties by assuring them inexpensive access to the ballot without depleting the funds needed for the campaign; allowing them to invite disaffected members of the major parties to participate in choosing protest candidates; and, most important, permitting them to