Downsizing the Right to Petition

By Lawson, Gary; Seidman, Guy | Northwestern University Law Review, Spring 1999 | Go to article overview

Downsizing the Right to Petition


Lawson, Gary, Seidman, Guy, Northwestern University Law Review


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.

I. THE RIGHT TO PETITION IN CONSTITUTIONAL CONTEXT

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Downsizing the Right to Petition
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.