Petition, Right of
PETITION, RIGHT OF
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.
SteveSheppard