RIGHT TO PETITION

The petition clause of the first amendment is understood by the courts today to protect a broad range of communications with governmental bodies and governmental officials, including both legislators and members of the executive branch. It has also been held to protect activity related to creating the petition and obtaining signatures. In spite of this broad contemporary understanding, the petition clause receives little attention, in large measure because other clauses of the First Amendment, notably those guaranteeing freedom of speech and freedom of the press, have been expanded so greatly that their protections have largely subsumed those protecting petitions. Protection of petitionary rights has not expanded in step with the protection accorded speech and press.

The modern jurisprudence inverts historical practice. Petitions were once the core mode of what we now call political speech. Moreover, the power accorded to such speech was, in many respects, effectively greater than political speech today. It embodied not just the persuasive and didactic elements of speech, but also a form of political practice, more akin to voting than to expression. Petitioning was born in and became a part of a political culture in many ways vastly different from that of a modern liberal polity. More organically conceived, more explicitly hierarchical, its organicism and hierarchy were reflected in mutual social and political obligations. It is telling that petitions not only embodied, but were sometimes even styled, prayers. By definition, then, they were a request from the subject to the sovereign, from the less powerful to the more. Both in style and substance, therefore, they legitimated the extant political hierarchy. Legitimation came at a price, however, paid by the powerful. In return for hierarchical deference subjects could insist that their prayers be heard and considered.

Both the English and American colonial practice bear out petition's role in such a political culture. While petitioning originated before magna carta, it is in the Great Charter that reciprocity and hierarchy are first most clearly stated. In return for the allegiance of the barons the king pledged to respect certain of their rights. Were the king's officers to transgress those rights, the barons were to name four of their number who were to notify the sovereign and ask that the offense be redressed—in other words, they were to petition. Petition thus was understood as a communication that required consideration. Over the ensuing centuries the spectrum of English society that could take advantage of petitioning expanded beyond the barons to subjects more generally, becoming part of English constitutionalism. Moreover, those prayers also came to embody the legislative agenda as Parliament used petitions as the vehicle to express the legislative power to withhold taxes until the prayers of petitioners were considered.

English settlers brought petitioning to the colonies as part of the trans-Atlantic migration of political culture. In the many charters and similar constitutional documents of the colonies, the right to petition was protected, in increasingly explicit terms. Colonial practice reflected the expansion of the exercise of petitioning England had seen; indeed, the colonies picked up the pace. As petitioners in England had done, colonial petitioners expanded the notion of what the meaning of a grievance was, so that a petition seeking a redress of a grievance often became more than a request for an individual remedy or plea for assistance. They became, as they were in the nascent form envisioned by Magna Carta, vehicles for the expression—often the collective expression—of concern or outrage over matters of policy and administration. Not only did the subject matter expand, those seeking redress constituted a growing spectrum of colonial society, regularly including nonvoting and unpropertied white men and ultimately even including the occasional petition from women, free blacks, Native Americans, and slaves.

That petitions were not just speech, or the written evidence of speech, is evident not just from their powerful place in an older political culture. They could mandate attention, but they had to do so in a manner both formal and deferential. As the Trial of the Seven Bishops (1688) made explicit, not just any communication, nor even any written communication, created a petition. Rather, to be accorded the protection of petitions from, for example, a prosecution for sedition, the communication had to contain "petitionary parts." At a bare minimum, a petition had to be addressed to an authority such as the king. It had to state a grievance. It had to pray for relief. And the term "prayer" had meaning. Even a radical request had to be decorously stated or it could be rejected. This requirement was more than a formalism, more than an insistence on civility in political discourse. Petitions were legitimate only insofar as they acknowledged constitutional authority and deferred to that authority.

As a matter of symbolic politics, therefore, when the rebellious colonies declared their independence, they did so only after listing in the declaration of independence their many "Oppressions" for which they sought "Redress" in petitions stated "in the most humble terms." These petitions were "answered only by repeated injury." Thus, the sovereign had severed the bonds of mutual obligation, not they, and had become "unfit to be the ruler of a free people."

In the Confederation era, the expectation both of legislative supremacy and the congruency of the legislative and popular interests meant that explicit statements protecting the right to petition were largely absent from the articles of confederation, but were part of the newly minted state constitutions. The Revolution, however, wrought a theoretical difficulty for petitioning. If the people were sovereign, then petitions could not really be prayers. Instead, they became statements and the controversy became not whether they should embody deference, but whether they could embody commands, that is, instructions, to representatives. To be sure, in some colonies during the eighteenth century a practice of instruction had existed. The Revolution, however, with its theme of popular sovereignty, rendered what had previously been merely practical problems of enforcement of instructions into first-rank theoretical problems of representation and sovereignty.

The first congress evaded those problems in drafting what became the First Amendment. It deliberately retreated from suggestions that the right to petition be transformed into the power to instruct, believing no legislator would forego the wise counsel of the citizenry but refusing to turn the representatives into reflecting machines. Furthermore, while the members of Congress believed that citizens would show respect for elected officers, it was clear that deference was no longer required. Indeed, at least at the state level, "remonstrance" was sometimes constitutionally sanctioned.

If deference no longer defined petitionary power, what of the bonds of mutual obligation when the citizenry was sovereign? Despite the evasion embodied in the First Amendment, masked by a rhetoric that seemed merely to continue a protected right, much had changed. In place of allegiance exchanged for protection had come a democratic power, one which underlay the republican form of government created in the Constitution. Granted, democratic power was restrained by certain processes of election and contained by restrictions on the use of governmental power. Nonetheless, ultimate authority was popular. The most immediate expression of that power was the vote, which, unlike petition, depended for its power on being massed in numbers sufficient to win elections. Winners of elections owed their power to that mass of the electorate that created their victory. Although winning numbers might be built on ever-shifting bases, those bases consisted solely of voters. Thus, if nonvoters were not represented by those who voted, they had no theoretical way to compel attention toward their grievances. Bonds of reciprocity characteristic of a more organic society were minimized; electoral power was elevated. Thus, as the polity became ever more democratic, those without electoral power saw their most important vehicle for political expression and participation—petition—lose much of its value.

What became of petition in the United States? The answer comes in two forms, one federal and the other state. The fears expressed in the debate in the First Congress in which those who sought instruction, not petitioning, feared that Congress would ignore the wise counsel of the citizenry were soon apparently realized. At the federal level Congress at first attempted to deal with petitions as had colonial assemblies. Congress received petitions, engaged in readings, referrals, and committee consideration.

The procedures became ever more bureaucratic and perfunctory, however, as other means of influencing the federal legislature came to the fore. Some historians have suggested that Congress was overwhelmed by the number of petitions it received, others have suggested that petitions against slavery brought forth a topic that was finally too controversial for actual consideration. Both factors came together in the famous antislavery petition drive that precipitated the congressional gag rule of the 1830s and 1840s, which barred reception of antislavery petitions. Closer examination of the evidence, however, reveals something quite different.

Despite growing importance of other methods of influencing Congress, petition continued to be a relatively effective vehicle for redress of what we today call private grievances, such as veterans' and widows' benefits, whether in the form of private bills or general legislative relief. While it is certainly true that the style of petitions and the quality of their reception changed for more public grievances, such as antislavery, the flow of petitions continued. Both the nineteenth and twentieth centuries have witnessed large-scale petition campaigns, such as those dealing with the woman suffrage movement, polygamy and the admission of Utah to statehood, prohibition, and calls to impeach Supreme Court Justices. None reached the size or sustained their energies for so long as antislavery, but they were significant nonetheless. The statements embodied in the petitions are also generally briefer, blunter, and more charged than in pre-Constitutional days. This change is not surprising. As petitions ceased to be vehicles that actually required detailed consideration, neither comprehensiveness nor civility was necessary. Petitioners adapted petitions to mass democracy, making them vehicles of political drama in electoral politics. Brevity, blunt statement, and electricity were useful in that role. The petitioners also used petitions to bootstrap themselves, at least eventually, into power in the electorate. Women's involvement in mass politics, for example, had its origins in women's involvement in the antislavery campaign.

The states saw similar adaptation. Petition continued to be a vehicle to obtain private benefits, such as charters of incorporation. Political petitions continued at the state level, too, ultimately culminating in the movements embodied in such phenomena as ballot initiatives, referenda, and electoral recall, features of democratic mass electoral politics.

The protections for prosecution necessary for petitioners in the pre-Constitutional era have become less necessary as electoral politics itself makes it possible to remove oppressive legislators. More importantly, speech and press protections have expanded so greatly that they cover much of what was once protected by the right to petition—and they do so for a much wider range of communicative activities. Thus, the jurisprudence of petition is now somewhat obscure, relegated to interstices of the law and embodied in such specialized doctrines as the Noerr-Pennington doctrine in antitrust. Petition and its protections have not disappeared; they have adapted and become less important as the political culture that gave rise to them has itself been replaced.

Gregory A. Mark
(2000)

Bibliography

Bailey, Raymond C. 1979 Popular Influence Upon Public Policy: Petitioning in Eighteenth-Century Virginia. Westport, Conn.: Greenwood Press.

Higginson, Stephen A. 1986 Note: A Short History of the Right to Petition Government for the Redress of Grievances. Yale Law Journal 96:142–166.

Mark, Gregory A. 1998 The Vestigial Constitution: The History and Significance of the Right to Petition. Fordham Law Review 66: 2153–2231.

Miller, William Lee 1996 Arguing About Slavery: The Great Battle in the United States Congress. New York: Alfred A. Knopf.

Smith, Don L. 1971 The Right to Petition for Redress of Grievances: Constitutional Development and Interpretations. Unpublished Ph.D. Dissertation: Texas Tech University.