Historical Record of the Right to Peititon Government for Redress of Grievances
By We The People Foundation for Constitutional Education, Inc.

From its inception in 1997 as an educational organization, the mission of We The People Foundation for Constitutional Education, Inc., and the We The People Congress, Inc. (“WTP”) has been to help People become better informed about their Rights, better informed about the actions of their Government and better informed about how to intelligently, rationally and professionally hold government accountable to the rule of law, including our Federal and State Constitutions and laws pursuant thereto, with full reliance on the fundamental Right to Petition the Government for Redress of Grievances, one of the five Rights guaranteed by the First Amendment.

As no court has ever declared the full rights of the People and the obligations of the Government under the Petition Clause of the First Amendment, WTP has studied its origin and line of growth. WTP’s interpretation of the meaning of the Petition Clause is strongly supported by all of history, from the English Magna Carta to the American Declaration of Independence and beyond. There is absolutely nothing in American History or Jurisprudence that contradicts WTP’s interpretation.

The following are the highlights of the historical record of the Right to Petition the Government for Redress of Grievances.

Chapter 61 of the Magna Carta (the cradle of Liberty and Freedom from wrongful government, signed in 1215, when King John was sovereign) reads in relevant part:

Chapter 61 was a procedural vehicle for enforcing the rest of the Charter. It spells out the Rights of the People and the obligations of the Government, and the procedural steps to be taken by the People and the King, in the event of a violation by the King of any provision of that Charter: the People were to transmit a Petition for a Redress of their Grievances; the King had 40 days to respond; if the King failed to respond in 40 days, the People could non-violently retain their money or violence could be legally employed against the King until he Redressed the alleged Grievances[1].

The 1689 Declaration of Rights proclaimed, “[I]t is the Right of the subjects to petition the King, and all commitments and prosecutions for such petitioning is illegal.” This was obviously a basis of the “shall make no law abridging the right to petition government for a redress of grievances” provision of our Bill of Rights.

In 1774, the same Congress that eventually adopted the Declaration of Independence, guided the nation through the Articles of Confederation and sat the Constitutional Convention of 1787, unanimously adopted an Act in which they gave meaning to the People’s Right to Petition for Redress of Grievances and the Right of enforcement as they spoke about the first of the People’s “Great Rights” – i.e., the Right to government based upon the consent of the People. Quoting:

In 1775, just prior to drafting the Declaration of Independence, Jefferson gave further meaning to the People’s Right to Petition for Redress of Grievances and the Right of enforcement. Quoting:

In 1776, the Declaration of Independence was adopted by the Continental Congress. The bulk of the document is a listing of the Grievances the People had against a Government that had been in place for 150 years. The final Grievance on the list is referred to by scholars as the “capstone” Grievance. The capstone Grievance was the ultimate Grievance, the Grievance that prevented Redress of these other Grievances, the Grievance that caused the People to non-violently withdraw their support and allegiance to the Government, and the Grievance that eventually justified War against the King, morally and legally. The Congress gave further meaning to the People’s Right to Petition for Redress of Grievances and the Right of enforcement. Quoting the Capstone Grievance:

There are those, such as Lawson and Seidman[2], who theorize that Government is not obligated anymore to respond to Petitions for Redress of Grievances[3] due to “modern notions of representative government…modern notions of separation of powers…[today’s absence of] sound pragmatic reasons for taking petitions seriously. Lawson and Seidman give as examples the absence of any threat of loss of “formal power over money matters” and the absence of any threat “from the point of a bayonet”. Lawson and Seidman also suggest that Petitions were merely devices for communication (not for the People to bind the Government to the Constitution), and that the Constitution’s “express provisions for periodic election of legislative officials” somehow provide the People with the adequate means to “affect government choice.” Lawson and Seidman ignore the self-evident fact that the Rights of individuals and the minority to cure constitutional torts they suffer cannot possibly be placed in the hands of the majority that elects our representatives.

The People did not lose any of their unalienable, Natural Rights when they reorganized Government and adopted the principle of separate powers. Nor have they given up their power over money matters or their Right to keep and bear arms.

In response to any notion that the People have lost a guarantee to one of their Rights under the Petition Clause because the Petition Clause is now superfluous, WTP argues they do not, EVER, lose any guarantees to any fundamental Rights until they agree to give them up under the procedures of Article Five of the Constitution of the United States of America.

And from Hamilton, Federalist No. 78:

The Circuit Court in We The People v. United States,485 F.3d 140 (2007) may have been deterred from a reversal by what it (incorrectly) perceived was a serious debate among the scholars regarding the obligation of the Government to respond to Petitions for Redress of Grievances, due to the hypothesis of Lawson and Seidman. Indeed, the Panel concluded its opinion stating, “We need not resolve this debate, however, because we must follow the binding Supreme Court precedent [in Smith and Knight].”[4]

Though the Rights to Popular Sovereignty and its “protector” Right, the Right of Petition for Redress have become somewhat forgotten, they took shape early on by Government’s response to Petitions for Redress of Grievances.[5] The Right is not changed by the fact that the Petition Clause lacks an affirmative statement that Government shall respond to Petitions for, “It cannot be presumed, that any clause in the Constitution is intended to be without effect.” Chief Justice Marshall in Marbury v. Madison. 5 U.S. (1 Cranch) 139 (1803). For instance, the 26th Amendment guarantees all citizens above the age of 18 the Right to Vote, it does not contain an affirmative statement that the Government shall count the votes.

The Right to Petition is a distinctive, substantive Right, from which other First Amendment Rights were derived. The Rights to free speech, press and assembly originated as derivative Rights insofar as they were necessary to protect the preexisting Right to Petition. Petitioning, as a way to hold Government accountable to natural Rights, originated in England in the 11th century[6] and gained recognition as a Right in the mid 17th century.[7] Free speech Rights first developed because members of Parliament needed to discuss freely the Petitions they received.[8] Publications reporting Petitions were the first to receive protection from the frequent prosecutions against the press for seditious libel.[9] Public meetings to prepare Petitions led to the Right of Public Assembly.[10]

The Right to Petition was widely accorded greater importance than the Rights of free expression. For instance, in the 18th century, the House of Commons[11], the American Colonies[12], and the first Continental Congress[13] gave official recognition to the Right to Petition, but not to the Rights of Free Speech or of the Press.[14]

The historical record shows that the Framers and Ratifiers of the First Amendment also understood the Petition Right as distinct from the Rights of free expression. In his original proposed draft of the Bill of Rights, Madison listed the Right to Petition and the Rights to speech and press in two separate sections.[15] In addition, a “considerable majority” of Congress defeated a motion to strike the assembly provision from the First Amendment because of the understanding that all of the rights in the First Amendment were separate Rights that should be specifically protected.[16]

Petitioning Government for Redress has played a key role in the development and enforcement of popular sovereignty throughout British and American history.[17] In medieval England, petitioning began as a way for barons to inform the King of their concerns and to influence his actions.[18] Later, in the 17th century, Parliament gained the Right to Petition the King.[19] This broadening of participation culminated in the official recognition of the right of Petition in the People themselves.[20]

The People used this newfound Right to question the legality of the Government’s actions,[21] to present their views on controversial matters,[22] and to demand that the Government, as the creature and servant of the People, be responsive to the popular will.[23]

In the American colonies, disenfranchised groups used Petitions to seek government accountability for their concerns and to rectify Government misconduct.[24] By the nineteenth century, Petitioning was described as “essential to … a free government,”[25] an inherent feature of a republic[26] and a means of enhancing Government accountability through the participation of citizens.

Government accountability was understood to include response to petitions.[27] American colonists, who exercised their Right to Petition the King or Parliament, [28]

Footnotes

  1. See Magna Carta Chapter 61. See also William Sharp McKechnie, Magna Carta 468-77 (2nd ed. 1914)
  2. Gary Lawson and Guy Seidman, “Downsizing the Right to Petition,” 93 Nw. U.L. Rev. 739, 756
  3. They make no distinction between grievances relating to constitutional torts and grievances relating to political or policy making matters.
  4. The Opinion listed most of the Law Review articles that the People relied on. However, the Panel overlooked one important historical review referenced by Appellants in their Brief to the Court; “The Vestigial Constitution: The History and Significance of the Right to Petition” by Gregory A. Mark, 66 Fordham L. Rev. 2153 (May, 1998).
  5. See A SHORT HISTORY OF THE RIGHT TO PETITION GOVERNMENT FOR REDRESS OF GRIEVANCES, Stephen A. Higginson, 96 Yale L.J. 142(November, 1986); "SHALL MAKE NO LAW ABRIDGING . . .": AN ANALYSIS OF THE NEGLECTED, BUT NEARLY ABSOLUTE, RIGHT OF PETITION, Norman B. Smith, 54 U. Cin. L. Rev. 1153 (1986);"LIBELOUS" PETITIONS FOR REDRESS OF GRIEVANCES -- BAD HISTORIOGRAPHY MAKES WORSE LAW, Eric Schnapper, 74 Iowa L. Rev. 303 (January 1989);THE BILL OF RIGHTS AS A CONSTITUTION, Akhil Reed Amar, 100 Yale L.J. 1131 (March, 1991); NOTE: A PETITION CLAUSE ANALYSIS OF SUITS AGAINST THE GOVERNMENT: IMPLICATIONS FOR RULE 11 SANCTIONS, 106 Harv. L. Rev. 1111 (MARCH, 1993); SOVEREIGN IMMUNITY AND THE RIGHT TO PETITION: TOWARD A FIRST AMENDMENT RIGHT TO PURSUE JUDICIAL CLAIMS AGAINST THE GOVERNMENT, James E. Pfander, 91 Nw. U.L. Rev. 899 (Spring 1997);THE VESTIGIAL CONSTITUTION: THE HISTORY AND SIGNIFICANCE OF THE RIGHT TO PETITION, Gregory A. Mark, 66 Fordham L. Rev. 2153 (May, 1998); DOWNSIZING THE RIGHT TO PETITION, Gary Lawson and Guy Seidman, 93 Nw. U.L. Rev. 739 (Spring 1999); A RIGHT OF ACCESS TO COURT UNDER THE PETITION CLAUSE OF THE FIRST AMENDMENT: DEFINING THE RIGHT, Carol Rice Andrews, 60 Ohio St. L.J. 557 (1999) ; MOTIVE RESTRICTIONS ON COURT ACCESS: A FIRST AMENDMENT CHALLENGE, Carol Rice Andrews, 61 Ohio St. L.J. 665 (2000).
  6. Norman B. Smith, “Shall Make No Law Abridging…”: Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, at 1154.
  7. See Bill of Rights, 1689, 1 W & M., ch. 2 Sections 5,13 (Eng.), reprinted in 5 THE FOUNDERS’ CONSITUTION 197 (Philip B. Kurland & Ralph Lerner eds., 1987); 1 WILLIAM BLACKSTONE, COMMENTARIES 138-39.
  8. See David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right to Petition, 9 LAW & HIST. REV. 113, at 115.
  9. See Smith, supra n.4, at 1165-67.
  10. See Charles E. Rice, Freedom of Petition, in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 789, (Leonard W. Levy ed., 1986)
  11. See Smith, supra n4, at 1165.
  12. For example, Massachusetts secured the Right to Petition in its Body of Liberties in 1641, but freedom of speech and press did not appear in the official documents until the mid-1700s. See David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 463 n.47 (1983).
  13. See id. at 464 n.52.
  14. Even when England and the American colonies recognized free speech Rights, petition Rights encompassed freedom from punishment for petitioning, whereas free speech Rights extended to freedom from prior restraints. See Frederick, supra n6, at 115-16.
  15. See New York Times Co. v. U.S., 403 U.S. 670, 716 n.2 (1971)(Black, J., concurring). For the full text of Madison’s proposal, see 1 ANNALS OF CONG. 434 (Joseph Gales ed., 1834).
  16. See 5 BERNARD SCHWARTZ, THE ROOTS OF THE BILL OF RIGHTS at 1089-91 (1980).
  17. See Don L. Smith, The Right to Petition for Redress of Grievances: Constitutional Development and Interpretations 10-108 (1971) (unpublished Ph.D. dissertation) (Univ. Microforms Int’l); K. Smellie, Right to Petition, in 12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 98, 98-101 (R.A. Seiligman ed., 1934).
  18. The Magna Carta of 1215 guaranteed this Right. See MAGNA CARTA, ch. 61, reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n.5, at 187.
  19. See PETITION OF RIGHT chs. 1, 7 (Eng. June 7, 1628), reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n5 at 187-88.
  20. In 1669, the House of Commons stated that, “it is an inherent right of every commoner in England to prepare and present Petitions to the House of Commons in case of grievances, and the House of Commons to receive the same.” Resolution of the House of Commons (1669), reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n5 at 188-89.
  21. For example, in 1688, a group of bishops sent a petition to James II that accused him of acting illegally. See Smith, supra n4, at 1160-62. James II’s attempt to punish the bishops for this Petition led to the Glorious Revolution and to the enactment of the Bill of Rights. See Smith, supra n15 at 41-43.
  22. See Smith, supra n4, at 1165 (describing a Petition regarding contested parliamentary elections).
  23. In 1701, Daniel Defoe sent a Petition to the House of Commons that accused the House of acting illegally when it incarcerated some previous petitioners. In response to Defoe’s demand for action, the House released those Petitioners. See Smith, supra n4, at 1163-64.
  24. See RAYMOND BAILEY, POPULAR INFLUENCE UPON PUBLIC POLICY: PETITIONING IN EIGHTEENTH-CENTURY VIRGINIA 43-44 (1979).
  25. THOMAS M. COOLEY, TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 531 (6th ed. 1890).
  26. See CONG. GLOBE, 39th Cong., 1st Session. 1293 (1866) (statement of Rep. Shellabarger) (declaring petitioning an indispensable Right “without which there is no citizenship” in any government); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 707 (Carolina Academic Press ed. 1987) (1833) (explaining that the Petition Right “results from [the] very nature of the structure [of a republican government]”).
  27. See Frederick, supra n7 at 114-15 (describing the historical development of the duty of government response to Petitions).
  28. See DECLARATION AND RESOLVES OF THE CONTINENTAL CONGRESS 3 (Am. Col. Oct. 14, 1774), reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n5 at 199; DECLARATION OF RIGHTS OF THE STAMP ACT CONGRESS 13 (Am. Col. Oct. 19, 1765), reprinted in id. at 198.
  29. See Frederick, supra n7 at 115-116.
  30. See THE DECLARATION OF INDEPENDENCE para. 30 (U.S. July 4, 1776), reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n5 at 199; Lee A. Strimbeck, The Right to Petition, 55 W. VA. L. REV. 275, 277 (1954).
  31. See 5 BERNARD SCHWARTZ, supra n15, 1091-105.
  32. The vote was 10-41 in the House and 2-14 in the Senate. See id. at 1105, 1148.
  33. See 1 ANNALS OF CONG. 733-46 (Joseph Gales ed., 1789); 5 BERNARD SCHWARTZ, supra n15, at 1093-94 (stating that representatives have a duty to inquire into the suggested measures contained in citizens’ Petitions) (statement of Rep. Roger Sherman); id. at 1095-96 (stating that Congress can never shut its ears to Petitions) (statement of Rep. Elbridge Gerry); id. at 1096 (arguing that the Right to Petition protects the Right to bring non-binding instructions to Congress’s attention) (statement of Rep. James Madison).
  34. See STAFF OF HOUSE COMM. ON ENERGY AND COMMERCE, 99TH CONG., 2D SESS., PETITIONS, MEMORIALS AND OTHER DOCUMENTS SUBMITTED FOR THE CONSIDERATION OF CONGRESS, MARCH 4, 1789 TO DECEMBER 15, 1975, at 6-9 (Comm. Print 1986) (including a comment by the press that “the principal part of Congress’s time has been taken up in the reading and referring Petitions” (quot. omitted)).
  35. See Stephen A. Higginson, Note, A Short History of the Right to Petition the Government for the Redress of Grievances, 96 YALE L. J. 142, at 156.
  36. See H.J., 25th Cong., 2d Sess. 647 (1838) (describing how petitions prompted the appointment of a select committee to consider legislation to abolish dueling).
  37. See Higginson, n34 at 157.