Academic journal article Northwestern University Law Review

Downsizing the Right to Petition

Academic journal article Northwestern University Law Review

Downsizing the Right to Petition

Article excerpt

The First Amendment provides that "Congress shall make no law ... abridging . the right of the people ... to petition the Government for a redress of grievances."1 Unlike the First Amendment's speech, press, and religion clauses, this "Petitions Clause" has not spawned an extensive body of case law or academic commentary. The right to petition has been, in many ways, the First Amendment's poor relation.

In recent years, however, there has been a marked upswing in scholarly interest in the right to petition2 perhaps sparked by the Supreme Court's 1985 holding in McDonald v. Smith3 that statements made in petitions to executive officials do not enjoy absolute immunity from libel actions. The near-unanimous conclusion of the modern commentators, drawing on the rich and important history of the Anglo-American right to petition, is that there is more to the Petitions Clause than is generally recognized by the Supreme Court's jurisprudence or by contemporary understandings and practice. In particular, a number of commentators urge that Congress has an obligation to consider and respond, in some perhaps informal but concrete manner, to all petitions from citizens addressed to it.4 A recent article by Professor James E. Pfander goes even further, insisting that the Petitions Clause guarantees a right to pursue judicial remedies for unlawful government conduct.5 In Professor Pfander's view, the Petitions Clause operates as "a constitutional antidote to the familiar doctrine of [federal] sovereign immunity."6

We welcome the long-overdue attention now being paid to the Petitions Clause, but we do not think it can bear the weight that these commentators would place upon it. The right to petition is powerful, but not that powerful. In particular, we do not agree that the Petitions Clause imposes on Congress a general obligation to consider or respond in any fashion to petitions that it receives. Nor do we think that the clause either strengthens or weakens the case against federal sovereign immunity. The right to petition served, and in many ways continues to serve, an important function in the development of modern government, but that function exhausts the meaning of the Petitions Clause. Put simply, the constitutional right to petition the government for a redress of grievances is precisely-for want of a better phrase-the right to petition the government for a redress of grievances.

In Part I, we analyze the textual and structural context of the right to petition in the federal Constitution. In Part II, we explore the historical meaning and development of the right to petition and identify the conditions that gave rise to that right. In Part III, we describe the obligations that the right imposes on the various institutions of the federal government.7 In particular, drawing partly on history but primarily on inferences from the Constitution's text and structure, we demonstrate that the right to petition does not impose on Congress a general obligation to consider or respond to petitions, though other departments of the government do have such obligations. In Part IV, we briefly show that the right to petition does not contribute anything significant to the debate concerning the validity of the doctrine of federal sovereign immunity. In Part V, we reach a brief, profoundly undramatic conclusion: the Petitions Clause means exactly what it says, and no more. It is a guarantee of an open channel of communication from citizens to the sovereign. It is not an assurance that communications sent through that channel will receive any particular reception or achieve any particular result.


The right to petition boasts a distinguished pedigree, running from Magna Carta in 1215(8) through royal commitments in the Petition of Right of 1628 and the Bill of Right of 1689(9) to seventeenth- and eighteenthcentury parliamentary guarantees of a general right to petition. …

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