Historical Record of the Right to Petiton 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.

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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.

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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:

 

61. Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us…. (emphasis added by the People).

-- Magna Carta

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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].

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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:

 

If money is wanted by rulers who have in any manner oppressed the People, they may retain it until their grievances are redressed, and thus peaceably procure relief, without trusting to despised petitions or disturbing the public tranquility.” "Continental Congress To The Inhabitants Of The Province Of Quebec.

-- Journals of the Continental Congress 1774, Journals 1: 105-13.

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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:

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“The privilege of giving or withholding our moneys is an important barrier against the undue exertion of prerogative which if left altogether without control may be exercised to our great oppression; and all history shows how efficacious its intercession for redress of grievances and reestablishment of rights, an how improvident would be the surrender of so powerful a mediator.”

-- Thomas Jefferson: Reply to Lord North, 1775. Papers 1:225

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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:

 

“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms. Our repeated Petitions have been answered only by with repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is thus unfit to be the ruler of a free people….We, therefore…declare, That these United Colonies…are Absolved from all Allegiance to the British Crown….”

-- Declaration of Independence , 1776 A.D.

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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.

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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.

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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.

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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)

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On every question of the construction of the Constitution, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.

-- Thomas Jefferson, Letter to William Johnson, Supreme Court Justice (1823)

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And the Constitution itself is in every real sense a law-the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides, and through whom such power and sovereignty primarily speaks. It is by that law, and not otherwise, that the legislative, executive, and judicial agencies which it created exercise such political authority as they have been permitted to possess. The Constitution speaks for itself in terms so plain that to misunderstand their import is not rationally possible. 'We the People of the United States,' it says, 'do ordain and establish this Constitution.' Ordain and establish! These are definite words of enactment, and without more would stamp what follows with the dignity and character of law. The framers of the Constitution, however, were not content to let the matter rest here, but provided explicitly-'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land.' (Const. art. 6, cl. 2.) The supremacy of the Constitution as law is thus declared without qualification. That supremacy is absolute; the supremacy of a statute enacted by Congress is not absolute but conditioned upon its being made in pursuance of the Constitution. And a judicial tribunal, clothed by that instrument with complete judicial power, and, therefore, by the very nature of the power, required to ascertain and apply the law to the facts in every case or proceeding properly brought for adjudication, must apply the supreme law and reject the inferior statute [298 U.S. 238, 297] whenever the two conflict. In the discharge of that duty, the opinion of the lawmakers that a statute passed by them is valid must be given great weight, Adkins v. Children's Hospital, 261 U.S. 525, 544 , 43 S.Ct. 394, 24 A.L.R. 1238; but their opinion, or the court's opinion, that the statute will prove greatly or generally beneficial is wholly irrelevant to the inquiry. Schechter Poultry Corp. v. United States, 295 U.S. 495, 549 , 550 S., 55 S.Ct. 837, 97 A.L.R. 947.” Carter v. Carter Coal Co., 298 U.S. 238 (1936).

 

And from Hamilton, Federalist No. 78:

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There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

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If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

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Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

-- Alexander Hamilton, Federalist No. 78

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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.

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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]

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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]

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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]

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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]

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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.

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

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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.