Downsizing the right to petition

Northwestern University Law Review

Volumn 93, Issue 3, 1999, Pages 739-765

  Lawson, Gary ^a   Seidman, Guy ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042323492     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (140)

1. U.S. CONST, amend. I.
2. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
3. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
4. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
5. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
6. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
7. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
8. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
9. See, e.g., Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899 (1997); Carol M. Rice, A Citizen's Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. (forthcoming 1999); Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111 (1993); Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142 (1986).
10. 472 U.S. 479 (1985).
11. See, e.g., Spanbauer, supra note 2, at 51; Higginson, supra note 2, at 165-66. As Professor Pfander observes, "most scholars agree that the right to petition includes a right to some sort of considered response." Pfander, supra note 2, at 905 n.22.
12. See Pfander, supra note 2.
13. Pfander, supra note 2, at 899. Other scholars have also suggested links between the right to petition and the suability of the federal government. See, e.g., John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1296-97 (1993) ("[T]he right to 'petition the Government for a redress of grievances' recalls the formal petition of right by which English subjects sought a waiver of their Monarch's sovereign immunity.") (quoting CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 6 (1972)). Professor Pfander's article, however, is the first work to advance systematically the Petitions Clause as a constitutional argument against sovereign immunity.
14. Pfander, supra note 2, at 899. Other scholars have also suggested links between the right to petition and the suability of the federal government. See, e.g., John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1296-97 (1993) ("[T]he right to 'petition the Government for a redress of grievances' recalls the formal petition of right by which English subjects sought a waiver of their Monarch's sovereign immunity.") (quoting CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 6 (1972)). Professor Pfander's article, however, is the first work to advance systematically the Petitions Clause as a constitutional argument against sovereign immunity.
15. We do not address the question that concerned the Court in McDonald, 472 U.S. at 479, which occupies much of the attention of the modern commentators: are statements made in petitions absolutely, or in any other respect, privileged against libel and other actions? Because the relevant tort actions arise under state law, a full answer to this question requires an understanding of whether the right to petition is properly "incorporated" against the states by virtue of the Fourteenth Amendment and how, if at all, such a right might be different from the right envisioned in the original Constitution. The incorporation of the First Amendment against the states is, of course, settled as a matter of contemporary doctrine, but it is far from settled as the correct understanding of the Constitution. We unabashedly duck all of those questions in this Article.
16. See Smith, supra note 2, at 1154-55.
17. Like Magna Carta, the Petition of Right contained a royal guarantee recognizing some rights, issued in response to a petition. See id. at 1156-57. The 1689 declaration of rights, agreed to by William and Mary as a precondition for their ascendancy to the English throne, provided "that it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning is illegal." Id. at 1162.
18. For example, a 1648 ordinance recognized petitioning as a fundamental right: "it is the Right and Privilege of the Subjects of England, to present unto the Parliament their just Grievances, by Way of Petition." Id. at 1159. A 1702 resolution stated that the people have a right to petition the king for the redress of grievances. See id. at 1165.
19. See THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS 140 (Neil H. Cogan ed., 1997) (identifying proposed amendments containing a right to petition from the New York, North Carolina, Rhode Island, and Virginia conventions).
20. Of course, as originally proposed to the states for ratification, what is now the First Amendment was in fact the third amendment. See Akhil Reed Amar, The Bill of Rights As a Constitution, 100 YALE L.J. 1131, 1137 (1991).
21. Pfander, supra note 2, at 954. This is actually an understatement; we are aware of no relevant debate concerning the inclusion of the right to petition in the Bill of Rights.
22. For an extended discussion of this point, see Gary Lawson, The Bill of Rights As an Exclamation Point, 33 U. RICH. L. REV. (forthcoming May 1999).
23. U.S. CONST, art. I, § 8, cl. 3.
24. Id. art. I, § 8, cl. 18.
25. See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993).
26. See Lawson, supra note 14.
27. For a detailed defense of this claim, see Lawson & Granger, supra note 17.
28. See Gary Lawson, Who Legislates?, 1995 PUB. INTEREST L. REV. 147, 151 (reviewing DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993)).
29. The king had a dominant role in medieval England's private law, especially with respect to rights to real property, which economically were the most important rights for centuries. The Norman conquest entrenched a feudal system in which all land was initially vested in the king; and even after the king had granted away portions of the land, the king remained at the top of the feudal pyramid. In technical terms, feudal ownership was tenurial rather than allodial; under the feudal structure of land tenure, "all land is still held of the king mediately or immediately." F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 155 (2d ed. 1968); see also 9 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 18-21 (1926). Moreover, royal grants or charters formed the basis for many economic, political, and educational activities. Since the time of Henry III (1216-1272), all franchises were generated from the express words of royal charters. Every liberty not warranted by charter had to be sued for to the king, and, in addition, all redress not obtainable in the common course of law could be obtained only by his grace and favor. Petition and grant in the king's council became one of the busiest functions of the crown.
30. The king had a dominant role in medieval England's private law, especially with respect to rights to real property, which economically were the most important rights for centuries. The Norman conquest entrenched a feudal system in which all land was initially vested in the king; and even after the king had granted away portions of the land, the king remained at the top of the feudal pyramid. In technical terms, feudal ownership was tenurial rather than allodial; under the feudal structure of land tenure, "all land is still held of the king mediately or immediately." F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 155 (2d ed. 1968); see also 9 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 18-21 (1926). Moreover, royal grants or charters formed the basis for many economic, political, and educational activities. Since the time of Henry III (1216-1272), all franchises were generated from the express words of royal charters. Every liberty not warranted by charter had to be sued for to the king, and, in addition, all redress not obtainable in the common course of law could be obtained only by his grace and favor. Petition and grant in the king's council became one of the busiest functions of the crown.
31. See J.E.A. JOLLIFFE, THE CONSTITUTIONAL HISTORY OF MEDIEVAL ENGLAND - FROM THE ENGLISH SETTLEMENT TO 1485, at 336-37 (1937). Many private rights granted by royal charter could be broken by the king and had to be confirmed by every new king.
32. See Ludwik Ehrlich, Proceedings Against The Crown (1216-1377), in 6 OXFORD STUDIES IN SOCIAL AND LEGAL HISTORY 1, 10-11 (Paul Vinogradoff ed., 1921).
33. See Ehrlich, supra note 21, at 9.
34. Thinkers such as Bracton, in the early thirteenth century, conceived of the king and his servants as ruling according to a law that bound all the members of the kingdom, high and low alike. The king's servants did their work not merely as agents of the king's will, but as dispensers of a law that bound both rulers and subjects. See 2 HOLDSWORTH, supra note 21, at 254; see also Ehrlich, supra note 21, at 14-15.
35. These promises were limitations that medieval men commonly supposed distinguished kings from tyrants. See BRYCE LYON, A CONSTITUTIONAL AND LEGAL HISTORY OF MEDIEVAL ENGLAND 140 (2d ed. 1980). While some of these oaths were vague - consisting of promises to observe peace, abolish evil laws and customs, and to maintain the good - others had more bite. Henry III apparently promised that he would "hold the laws and customs of the realms which the people shall have made and chosen and will maintain and uphold them and will put out all bad laws and customs." MAITLAND, supra note 21, at 99; see also COLIN RHYS LOVELL, ENGLISH CONSTITUTIONAL AND LEGAL HISTORY: A SURVEY 73-74 (1962) (noting that the Coronation Charter was "of fundamental importance in English constitutional history because it placed the king under law," and observing that "[a]lthough Henry I ignored the charter at his convenience, the fact remained that a formal document had declared that certain things, even when done by the king, were illegal.").
36. These promises were limitations that medieval men commonly supposed distinguished kings from tyrants. See BRYCE LYON, A CONSTITUTIONAL AND LEGAL HISTORY OF MEDIEVAL ENGLAND 140 (2d ed. 1980). While some of these oaths were vague - consisting of promises to observe peace, abolish evil laws and customs, and to maintain the good - others had more bite. Henry III apparently promised that he would "hold the laws and customs of the realms which the people shall have made and chosen and will maintain and uphold them and will put out all bad laws and customs." MAITLAND, supra note 21, at 99; see also COLIN RHYS LOVELL, ENGLISH CONSTITUTIONAL AND LEGAL HISTORY: A SURVEY 73-74 (1962) (noting that the Coronation Charter was "of fundamental importance in English constitutional history because it placed the king under law," and observing that "[a]lthough Henry I ignored the charter at his convenience, the fact remained that a formal document had declared that certain things, even when done by the king, were illegal.").
37. See LEON HURWITZ, THE STATE AS DEFENDANT: GOVERNMENTAL ACCOUNTABILITY AND THE REDRESS OF INDIVIDUAL GRIEVANCES 10 (1981).
38. See id. at 10-11 (describing the view that the king cannot be held accountable in any temporal tribunal, as this would essentially be a revolt against God).
39. The feudal system did not allow feudal inferiors to complain about the actions of those hierarchically above them in the feudal pyramid. The feudal lord of each rank established a court to adjudicate disputes and enforced, possibly as judge, the legal codes that applied to his serfs. A lord could obviously not be tried in his own court without his consent, though he was subject to proceedings in his superiors' court. But there was no court above the king's, and thus no temporal forum that had jurisdiction over him. See id. at 11 ; Homer Allen Walkup, Immunity of the State from Suit by its Citizens - Toward a More Enlightened Concept, 36 GEO. L.J. 310, 313 (1948).
40. See Ehrlich, supra note 21, at 21-26.
41. MAITLAND, supra note 21, at 100. For, as Bracton explained, "[t]he king is below no man, but he is below God and the law . . . though if he breaks it, his punishment must be left to God." Id. at 100-01.
42. See MAGNA CARTA ch. 61.
43. King John conferred on 25 of the barons, almost all of them declared enemies, a legal right to organize a rebellion whenever in their opinion he had broken any one of the provisions of Magna Carta. Violence might legally be employed against him until he redressed their alleged grievances. Opposition leaders at the time apparently considered this a practicable scheme of government. See WILLIAM SHARP MCKECHNIE, MAGNA CARTA 468-77 (2d ed. 1914); cf. LOVELL, supra note 24, at 117 (suggesting the clause contained elements of considerable sophistication for its time).
44. See Spanbauer, supra note 2, at 23.
45. And before there was a clear demarcation among executive, legislative, and judicial functions. See RAYMOND C. BAILEY, POPULAR INFLUENCE UPON PUBLIC POLICY: PETITIONING IN EIGHTEENTH-CENTURY VIRGINIA 9n.1 (1979).
46. See Smith, supra note 2, at 1155.
47. See David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right of Petition, 9 LAW & HIST. REV. 113, 114 (1991) ("Official requests for petitions by Edward I (1272-1307) encouraged the widespread practice of petitioning."); Smith, supra note 2, at 1155, 1157 (noting the encouragement to petition provided by Edward III (1327-1377), James I in 1622, and Charles I in 1644).
48. See Frederick, supra note 35, at 115 ("Historians are quick to point out that the English king showed no trepidation in rejecting petitions he found distasteful, but he did not simply ignore them.").
49. See Smith, supra note 2, at 1158.
50. 1 W & M, Sess. 2, ch. 2 (1689).
51. Parliament initially included the king, council, other powerful lords and churchmen and, on occasion, elected representatives from the shires and boroughs. See BAILEY, supra note 33, at 9. The king's council was the "core and essence" of the Parliament, its working body consisting of the king's great officers of state and the judges. See 1 HOLDSWORTH, supra note 21, at 352-53. Eventually, of course, power shifted from the council to elected representatives (the Commons).
52. Early parliaments pursued two other activities. First, they transacted business of state, sometimes including taxation measures and other legislation, and second, they functioned as a judicial body. See 1 HOLDSWORTH, supra note 21, at 351.
53. See BAILEY, supra note 33, at 9 & n.2.
54. In 1305, clerks were appointed to receive and classify the petitions, and committees were appointed to receive and reply to them. In 1316, groups of receivers, who were usually clerks of the Chancery, were appointed to receive and classify the petitions, while the duty to hear them was turned over to persons called triers, auditors, or examiners, who were "bishops and barons with only a few of the judges and officers to aid them." 1 HOLDSWORTH, supra note 21, at 359 & n.2.
55. See id. at 359 & n.7.
56. In the fifteenth century, Parliament turned petitions over to the Council, and in the sixteenth century the task was divided between Council, Star Chamber, and Chancery. See id. at 359. By 1571, the House of Commons often considered petitions and grievances in a committee, generally a committee of the whole house. See BAILEY, supra note 33, at 12 & n.11.
57. See id. at 12.
58. See Smith, supra note 2, at 1167.
59. See id. at 1159.
60. See id. at 1162.
61. In 1701, the grand jury of Kent presented a respectfully worded petition that fully complied with all of the requirements of the 1661 statute to the House of Commons requesting that the king be granted money urgently needed for prosecuting the war against France. Viewing the petition as a Whig political maneuver, the House voted the petition "scandalous, insolent and seditious" and committed the petitioners to prison. See MAITLAND, supra note 21, at 323; Smith, supra note 2, at 1162-63. A tract by Daniel Defoe defended the right to petition and protested against the imprisonment of the Kentish petitioners. Parliament retreated, the money bills requested by the king were soon passed, and the Kentish petitioners were released. See Smith, supra note 2, at 1163-65.
62. See Frederick, supra note 35, at 116.
63. There is actually some debate among historians concerning whether the rights protected by these charters included political rights or only legal, tenurial and private rights. See BAILEY, supra note 33, at 14.
64. The first recorded instance of petitioning in Virginia occurred very early in the original settlement's history. The initial group of settlers disembarked on the site that became Jamestown on May 24, 1607, where they were governed by a president and council. On June 6, 1607, some gentlemen petitioned the council for "Reformatyon." See id. at 14-15. Similarly the first recorded act of business in the colony of Connecticut concerned a petition against trading firearms with the local Indians. See Higginson, supra note 2, at 144.
65. Colonization was a voluntary act. To attract people to the colonies, recipients of royal grants had to offer generous terms, which could include land grants, a share in government, or both. Many colonists seeking to escape oppression in England were keenly concerned about migrating to a colony that would respect their personal rights. During the tumultuous seventeenth century, "many looked to the American wilderness as the only asylum in which they could enjoy civil and spiritual freedom." 1 T.B. MACAULEY, HISTORY OF ENGLAND 27 (1881), quoted in Smith, supra note 2, at 1170. The colonial marketplace responded accordingly. Thus, in an attempt to stimulate new migration and offer additional incentives to those already there, the Virginia company adopted more liberal policies in 1618, including the establishment of a representative assembly. See BAILEY, supra note 33, at 15; EDMUND S. MORGAN, INVENTING THE PEOPLE - THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 128 (1988). The Virginia assembly became the first representative assembly to convene in the New World. On its first gathering, in July 1619, it considered petitions presented by citizens of the colony and adopted several petitions to be dispatched to London. See BAILEY, supra note 33, at 15.
66. See Spanbauer, supra note 2, at 27-28.
67. See id. at 28.
68. For example, in Virginia during the eighteenth century, far more petitions were presented to the legislature than to other branches of government, as colonists increasingly chose to petition their elected representatives in the lower house rather than the governor and council. See BAILEY, supra note 33, at 25.
69. See Pfander, supra note 2, at 933-34. Voting requirements, of course, generally excluded women, blacks, and the very poor - for whom petitioning served, at times, as a substitute for suffrage. For an extensive discussion of this oft-overlooked role for petitions, see Mark, supra note 2.
70. See Higginson, supra note 2, at 145.
71. See Smith, supra note 2, at 1173.
72. The primary function of colonial assemblies was often judicial: "[m]ost petitions in the early colonies involved private disputes that the assemblies . . . would investigate and resolve." Higginson, supra note 2, at 146.
73. See id. at 147.
74. Spanbauer, supra note 2, at 33. For a description of how one colony, Connecticut, sought to address even an "oppressive number of petitions" through quasi-adjudicatory proceedings, see Higginson, supra note 2, at 147-49.
75. In 1770, Connecticut's general assembly promulgated only 15 laws on its own initiative, while acting on more than 150 causes brought by petitioners. See Higginson, supra note 2, at 146. In Pennsylvania, 52% of the acts passed between 1717 and 1775 originated in petitions, see MORGAN, supra note 53, at 229 & n.58, and the Virginia legislature also "proved extremely receptive, as far more eighteenth-century laws originated directly in response to . . . petitions than from any other source." BAILEY, supra note 33, at 6. See generally Frederick, supra note 35, at 116 ("Just as in England, much colonial legislation resulted from petitions.").
76. Higginson, supra note 2, at 153; see also Mark, supra note 2, at 2178-87 (stressing that not only the enfranchised population, but also unrepresented or underrepresented groups, such as women, felons, Indians, and even slaves, occasionally, represented themselves and voiced grievances through petitions).
77. See Spanbauer, supra note 2, at 20-21, 30-32 (describing the development of effective immunity for petitions).
78. Id. at 31; see also Higginson, supra note 2, at 149 (colonial assemblies retained the threat of contempt proceedings as a restraint on meritless petitioning).
79. The Declaration and Resolves of October 14, 1774, held that colonists had "a right peaceably to assemble, consider of their grievances, and petition the king." 5 THE FOUNDERS' CONSTITUTION 199 (Philip B. Kurland & Ralph Lenrer eds., 1987).
80. See supra note 11.
81. See Frederick, supra note 35, at 117. "By 1795, congressmen spent so much time dealing with petitions that one . . . newspaperman commented that '[t]he principal part of [Congress's] time has been taken up in reading and referring petitions.'" Id. 70 See Spanbauer, supra note 2, at 17-18.
82. See Frederick, supra note 35, at 117-18.
83. See id. at 118.
84. See, e.g., McDonald v. Smith, 472 U.S. 479 (1985): The Petition Clause . . . was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. These First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions. Id. at 485 (citations omitted).
85. The Court has afforded petitioning only a qualified immunity from libel laws. See McDonald, 472 U.S. at 479. In the context of the antitrust laws, the Court grants absolute immunity to legitimate petitioning. See United Mine Workers v. Pennington, 381 U.S. 657, 669-70 (1965); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 (1961). The courts do not grant such immunity to so-called "sham" petitioning that is merely an attempt to use the machinery of government to harm competitors. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511 (1972).
86. See Spanbauer, supra note 2, at 49-51.
87. This was particularly noticeable during the reign of the House of Stuart; the policies of James I and Charles I, if successful, would have led to "royal absolutism on the Continental pattern." LOVELL, supra note 24, at 283.
88. See id. at 9. In early times, the Witan felt free to name anyone king and could depose him as well, though this latter action was rare and usually in response to outside pressure. See id. at 11-12. The Witan's basic functions were advisory. See id. at 16. As its final act, the Witan named William the Conqueror king in 1066. See id. at 11, 52.
89. Or Magnum Concilium: a meeting of all the great lords of the land, held three times a year. See id. at 61.
90. The nucleus of this court was a body of 10 to 30 people who belonged to the royal household, with a number of lay and ecclesiastical barons also present. It performed many functions, including feudal court and advisor to the crown on all kinds of public business. See id. at 61-63.
91. See MAITLAND, supra note 21, at 94.
92. LOVELL, supra note 24, at 13.
93. These sources included their vast landholdings, which often expanded through escheats and forfeitures; feudal rights; the operation of the king's courts; the sale of proprietary rights; and the sale of offices. See MAITLAND, supra note 21, at 92-94. The king had also become entitled to some customs duties, recognized later in Magna Carta as certain "ancient and right customs . . . which merchants can be called upon to pay." Id. at 94. They were enough to create vast incomes. In the twelfth century, Henry II "outdistanced all other European rulers in wealth," and John "had enormous wealth and the most efficient administrative machine in Europe." LOVELL, supra note 24, at 84, 111.
94. Much of the criticism of English monarchs concerned their actions in pursuit of higher income, starting as early as the reign of William II (1087-1100), who raised the value to the crown of feudal incidents. Increasing the revenues was the main preoccupation of Henry II's administration. Later kings followed suit. See LOVELL, supra note 24, at 71, 83, 100-01; see also LYON, supra note 24, at 313-14 (describing the pre-Magna Carta Angevin kings' increasingly arbitrary methods for increasing revenue used to provide for their fiscal needs).
95. See MAITLAND, supra note 21, at 92. The only national tax in Anglo-Saxon England was the Danegeld - literally Dane money - first levied in 991 to finance defense against the Danish threat. It was accepted as a temporary measure to meet a dire emergency. See LOVELL, supra note 24, at 13-14.
96. Among the more questionable devices used at later times were forced loans and benevolences, which were "gifts" from loyal subjects given upon threat of incarceration. See LOVELL, supra note 24, at 249.
97. See id. at 111-13.
98. Aids, which obliged feudal tenants to provide financial assistance to their lords, were among the "incidents" of feudal landholding: rights that were held by feudal lords simply by virtue of their position in the landholding hierarchy. Custom, however, limited the imposition of aids to certain specified events - for example, the need to ransom the lord from his enemies. Extraordinary aids and scutages were essentially royal demands for revenue that fell outside the customary obligations that attached to feudal landholding.
99. See LOVELL, supra note 24, at 113.
100. 1 HOLDSWORTH, supra note 21, at 351.
101. And, indeed, to reissue and reaffirm Magna Carta: "[t]he reissue of 1225 later became one of the first statutes in English law in 1297." See LOVELL, supra note 24, at 118, 170-71. The edict against royal taxation without the common counsel of the realm was in fact observed. See LYON, supra note 24, at 310-11, 314; MAITLAND, supra note 21, at 92-96.
102. Knights were lower feudal tenants; traditionally allies of the king, they had an essential role as local administrators for the crown. Burgesses were the nonfeudal mercantile class - wealthy merchants were willing to pay the king for charters, giving their particular locality borough status, and removing it from shire control. Proctors were the representatives of the lower clergy. Some parts of the population, like Jews and serfs, were not represented and their consent was not required. See LOVELL, supra note 24, at 159-60, 165, 167, 171 n.11.
103. In 1297, popular dissatisfaction with the king's taxation, combined with effective passive resistance, persuaded the king that without the positive backing of the realm his policies were doomed to failure; the result was confirmation of previous charters, including Magna Carta. The barons found that with the support of knights and burgesses in the Parliament of 1311, they were able to secure widespread popular assent for the ordinances they passed. See id. at 169-70, 179-80.
104. Petitions to the king were sent to the courts or the chancellor, and only the most difficult ones were reserved for Parliament. The judicial function became the defining feature of Parliament: when not engaged in judicial activities, it was just another meeting of Curia Regis. See id. at 161, 165-66.
105. BAILEY, supra note 33, at 10.
106. MORGAN, supra note 53, at 223-24.
107. See BAILEY, supra note 33, at 10.
108. See id. at 11; cf. Frederick, supra note 35, at 114 ("By the seventeenth century, much of England's legislation originated in the pleas contained in petitions.").
109. See supra note 2.
110. U.S. CONST, art. I, § 1.
111. Id. art. II, § 1.
112. Id. art. III, § 1.
113. See Part I, supra.
114. That notification need not necessarily include a written opinion explaining the court's reasoning, see Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1328 (1996), but it must at least include a statement of the disposition.
115. Indeed, there is no smoking gun evidence to establish any propositions about the original meaning of "[t]he judicial Power." The founding generation said virtually nothing on the subject, perhaps because "[t]he judicial Power" had not traditionally been viewed as a government function separate from the executive and legislative powers.
116. Such a law clearly would not be "proper" and hence would not be constitutionally authorized. See generally Lawson & Granger, supra note 17 (discussing the constitutional meaning of the word "proper" in the Sweeping Clause).
117. The same considerations, of course, explain and justify certain limitations on one's ability to petition the courts, such as requirements of form and the payment of filing fees. It is more doubtful, however, whether Congress or the courts can impose penalties or punishments based on the act of petitioning or the content of petitions. See generally Note, supra note 2 (suggesting that the Petitions Clause might call into question many applications of Rule 11 of the Federal Rules of Civil Procedure, which calls for sanctions against frivolous filings). For an extensive discussion of the obligations of the federal courts to receive and respond to petitions, see Rice, supra note 2.
118. U.S. CONST, art. I, § 4, cl. 2; see also id. amend. XX, § 2 (reaffirming this obligation but altering the default date for commencement of the session).
119. Id. art. I, § 5, cl. 3.
120. Id. art. I, § 5, cl. 4.
121. See id. art. I, § 7, cl. 1.
122. Id. art. I, § 5, cl. 2.
123. See Higginson, supra note 2, at 158-65 (detailing the debates over the gag rule).
124. See John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371 (1988).
125. Or, for that matter, than presidential legislative recommendations. The Constitution obliges the President to "recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient," U.S. CONST, art. II, § 3, but does not oblige Congress to act on those recommendations.
126. Id. art. V (emphasis added).
127. Except, of course, when the Senate is trying an impeachment.
128. See Harrison, supra note 114, at 373-74; Randy Barnett, An Originalism for Nonoriginalists 8-9 (Mar. 23, 1999) (unpublished manuscript, on file with author).
129. Professor Mark's account of the rise and fall of petitioning, see Mark, supra note 2, at 2230-31, rests largely on the displacement of petitioning by enfranchisement.
130. See Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1246-47 (1994).
131. See id. at 1246.
132. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 199-200 (1996) (discussing Locke's conception of the federative power).
133. U.S. CONST, art. II, § 3. The appointment power in article II, § 2 is also phrased in mandatory terms ("he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint"), but the immediately preceding context of the grant of the treaty power ("He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties") suggests that the Appointments Clause is best read as a grant of power rather than an affirmative duty.
134. See id. art. I, § 7.
135. Pfander, supra note 2, at 990.
136. The consensus of modern commentators calls for the abolition of the doctrine of sovereign immunity. See Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions From The Public-Lands Cases, 68 MICH. L. REV. 867, 867 (1970) ("Since the end of the last century, learned members of the legal profession have been continuously attacking the roots and branches of that judicially planted growth."). Indeed, "[n]o scholar, so far as can be ascertained, has had a good word for sovereign immunity for many years." Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 MICH. L. REV. 387, 419 (1970). We are inclined to believe that these criticisms of sovereign immunity rest, at least in part, on a misunderstanding of sovereign immunity's role in the overall scheme of government accountability, but that is a story for another day.
137. The consensus of modern commentators calls for the abolition of the doctrine of sovereign immunity. See Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions From The Public-Lands Cases, 68 MICH. L. REV. 867, 867 (1970) ("Since the end of the last century, learned members of the legal profession have been continuously attacking the roots and branches of that judicially planted growth."). Indeed, "[n]o scholar, so far as can be ascertained, has had a good word for sovereign immunity for many years." Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 MICH. L. REV. 387, 419 (1970). We are inclined to believe that these criticisms of sovereign immunity rest, at least in part, on a misunderstanding of sovereign immunity's role in the overall scheme of government accountability, but that is a story for another day.
138. Pfander, supra note 2, at 901.
139. As Professor Pfander explains it: Although some [petitions] sought the grant of a royal favor as a matter of pure grace, many petitions grounded their claims in legal right. Such "petitions of right" sought royal consent to the litigation of legal claims in the courts of justice, consent necessitated by the inability of the common law courts routinely to entertain suits or proceedings against the Crown. Assuming that the King supplied the proper endorsement ("let right be done to the parties"), the petition went to Chancery for an investigation. If seemingly well-founded, then the action proceeded to litigation in the proper court with the attorney general appearing for the Crown. The endorsement authorized the court to hear the case, to decide it on legal principles, and to render a judgment against the Crown. Id. at 909 (citations omitted).
140. We have some doubts about the soundness of these aspects of Professor Pfander's argument, but to air those doubts here would take us too far afield. For instance, a full assessment of Professor Pfander's argument would require a careful study of the interplay between official and sovereign immunity - a project that we hope to develop in the future.