Right Of Petition

The First Amendment guarantees the right “to petition the government for redress of grievances.” It has its roots, as do many of our constitutional safeguards, in the constitutional development of England, with the idea of “redress” suggested by Edgar the Peaceful as early as between 959 and 963 CE. It had a significant role in the burgeoning rise of parliamentary power with the Magna Carta of 1215 (chapter 61). The House of Commons commenced a formal practice of petitioning the king on behalf of individual citizens as well as corporations during the latter part of the thirteenth century, thus introducing formal attempts to bargain with him.

Some three centuries later, after the Glorious Revolution of 1688, Parliament enacted the Declaration of Rights of 1689, affirmed as the Bill of Rights in the same year, which endeavored to enshrine the right of petition, that is, access to an authority empowered to redress a grievance, or sanction a demand, as a basic constitutional entitlement. It became logically one of the corner‐stones of America's Declaration of Independence of 1776 and, ultimately, of the Bill of Rights in 1791. Thomas Jefferson's roster of grievances contained in the former catalogued the flouting of “petitions for redress” as one of the cardinal grievances against King George III. It was only natural that the Bill of Rights would also embrace the right of petition. Most state constitutions included a similar guarantee.

The right to petition has received far less judicial attention than have the other four rights spelled out in the First Amendment, and is often taken for granted. It has frequently been subsumed under the collateral rights of assembly and association in decisions such as United States v. Cruikshank (1876), Twining v. New Jersey (1908), DeJonge v. Oregon (1937), Hague v. Congress of Industrial Organizations (1939), and Brown v. Glines (1980). But it is nonetheless secure and employed with predictable alacrity by a petition‐prone and litigious American citizenry.

The right of petitions takes two forms: one is the direct petitioning of legislators—and sometimes members of the executive branch, including administrative bodies—for the redress of whatever genuine or imaginary grievances an individual constituent (or, for that matter, a nonconstituent) or a group may have or fancy. It is here that members of legislative bodies, most prominently members of Congress, play a favorite role, that of errand running for those whom they represent, those who helped to select them, and also those who did not. Closely related to the other hallowed rights under the First Amendment, the American public demonstrably views the right of petition as a basic prerogative.

The second form is the popular practice of circulating petitions to be signed by individuals (and/or groups and business and professional organizations) so as to create visible pressure on individual players in the governmental process. Such petitions have become a major tool in that process and are frequently directly responsible for action by governmental bodies. This generation of massive pressuring runs the gamut from handwritten formats to sophisticated, mass‐produced modes of appeal, often utilizing the media, especially in the form of paid newspaper advertisements, in which long lists of supplicants contribute to the costs involved and permit their names to be used.

Only once in the two centuries of the existence of the Constitution of the United States has there been a formal attempt to curb the right to petition for the redress of grievances. It occurred in 1836, when the House of Representatives—but not the Senate—enacted what became quickly known as the “gag rule” against the receipt of petitions from abolitionists who opposed the institution of slavery. The “gag rule” came under immediate fire, with opposition spearheaded by antislavery Whigs under the leadership of Congressman (and former President) John Quincy Adams; it was repealed eight years later.

Bibliography

• Don L. Smith, The Right to Petition for Redress of Grievances: Constitutional Development and Interpretations (1971)

— Henry J. Abraham

Petition, Right Of, is both a political ideal and a constitutional doctrine. As a political ideal it reflects the democratic notion that the officials of government must hear and respond to complaints brought by citizens. As a constitutional doctrine, it is enshrined in the text of the First Amendment, although it is not an absolute right.

Its English roots are in the ancient custom of subjects petitioning the king directly for redress for wrongs done either by officials or by other subjects. Magna Charta's article 16 (1215) required a form of petition, which influenced later imaginations, but that article was omitted from the final version of Magna Charta confirmed by Edward I in 1297. Even so, subjects continued to seek privileges and immunities from the Crown, petitioning the monarch directly. Many petitions were claims for property unlawfully held by the monarch, and royal ministers referred such claims by writ to various courts, usually the Exchequer. Parliament also petitioned the king, both for privileges for Parliament or its members and for royal policy in various matters. Most famously, the Petition of Right (1628) confirmed the freedoms of the subject from arbitrary arrest, trials by military commissions, and taxation by any but Parliament.

Parliament too was petitioned by individuals, as well as towns, grand juries, churches, and other entities. A Commonwealth statute (1648) proclaimed "it is the Right and Privilege of the Subjects of England, to present unto the Parliament their just Grievances, by Way of Petition, in a due Manner; and they shall be always ready to receive such Petitions."

Despite these assurances, both king and Parliament imprisoned inconvenient petitioners. Immunity to petition the king was confirmed by William and Mary's assent to the Declaration of Rights (1689). Parliament, however, was another matter, arresting petitioners from the grand jury of Kent in 1701 and prompting an outcry led by pamphleteer Daniel Dafoe. The Kentishmen were released, and throughout the 1700s, petitioning meetings and riots remained essentially immune from state interference.

Similarly, the English colonies in North America protected petitions. The Body of Liberties of the Massachusetts Bay Colony (1642) gave a universal liberty to "move any lawful, seasonable or material Question, or to present any necessary Motion, Complaint, Petition, Bill or Information" to any public meeting or court. Although the colony of New York prosecuted two petitioners, most colonies adopted liberties similar to those of Massachusetts, and much colonial legislation was passed in response to such petitions. Indeed, the American Declaration of Independence was drafted in the form of a petition, and one of its bases for independence was the claim that "We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury." Most of the first state constitutions contained a right to petition the government, although some qualified this right, requiring it to be exercised peaceably.

The failure of the Constitution of 1789 to provide a right of petition was one of the objections raised by Antifederalists. Following both debate and amendment of James Madison's draft clause, the third proposed article of amendment provided that "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances." As ratified, this became and remains the sixth clause of the First Amendment.

The first test of the article followed adoption of the Alien and Sedition Acts (1798). Numerous petitions were presented to Congress, demanding their repeal. A New York assemblyman, Jedediah Peck, was arrested for sedition for acts including promoting such a petition. He was later released under popular pressure, and after the act expired in 1801, Thomas Jefferson's administration paid the fines of all arrested under them.

Although many petitions were brought to Congress in the nineteenth century, the right to petition first began to figure in the federal courts as a collateral element in litigation over other conduct. In Crandall v. Nevada (1867), the U.S. Supreme Court declared a right to interstate travel free of a travel tax, because travel was necessary to exercise the right to petition the federal government. In United States v. Cruikshank (1876), although the Court limited the application of a Reconstruction statute protecting assemblies, it did allow protection of assemblies for the purpose of petitioning, noting the "very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances."

In the twentieth century, however, the Court began to limit the right to petition. In Thomas v. Collins (1945), the Supreme Court held that the nature and scope of the freedom to petition was inseparable from the First Amendment freedoms of speech, press, and assembly. On this basis, the Court in 1961 limited protection for lawsuits or other petitions that might otherwise violate antitrust laws, holding in Eastern Railroad Conference v. Noerr Motor Freight that a petition that served an ulterior motive would be subject to antitrust limits. Similarly, in McDonald v. Smith (1985), the Court held that the limits on the exercise of the freedoms of speech, press, and assembly also apply to petitions; thus one who wrote to the president to complain of a candidate for executive appointment could still be sued for libel under the standards of New York Times v. Sullivan (1964). In the years since McDonald, many cases involving petitions—such as testimony before legislatures, writings to executives, and lawsuit complaints or testimony—have been considered by the Supreme Court to be exercises not of a right to petition but a right to free speech. Most cases since 1985 in which a right to petition has been argued have been decided by lower federal courts.

Despite such limits, the right of petition was a valuable tool in the struggle for the protection of civil rights in the 1960s. Courts protected not only marches and rallies but petition drives and voter registration programs as acts necessary to the petition of government.

In the twenty-first century, the right to petition is protected as a component of political expression, but the petition must be on a matter of public, not private or personal, concern. It is subject to federal and state laws protecting peace and order, as well as to reasonable, minimal restrictions of time, place, and manner, including requirements that the petition be written and not oral. Therefore, it also does not give a right to personally contact any given official. The employment of lobbyists is protected by the right; however, requirements that the lobbyists be registered do not violate the right. Petitions presented to the federal courts are subject to the rules of standing, in which the petitioner must prove personal harm from the issue petitioned.

Beyond the constitutional right as it is protected by the courts, the democratic ideal persists. Ideally any citizen or group of citizens may petition a legislature, executive, agency, or court, and all petitions must be heard and acted upon by officials without regard to the influence or wealth of their source.

Bibliography

Higginson, Stephen A. "Note, A Short History of the Right to Petition Government for the Redress of Grievances." Yale Law Journal 96 (1986): 142.

Lawson, Gary, and Guy Seidman. "Downsizing the Right to Petition." Northwestern University Law Review 93 (1999): 739–767.

Mark, Gregory A. "The Vestigial Constitution: The History and Significance of the Right to Petition." Fordham Law Review 66 (1998): 2153–2232.

Pfander, James E. "Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government." Northwestern University Law Review 91 (1997): 899–1014.

Smith, Norman B. "'Shall Make No Law Abridging …': An Analysis of the Neglected, But Nearly Absolute, Right of Petition." University of Cincinnati Law Review 54 (1986): 1153.