Restoring the right to petition

Northwestern University Law Review

Volumn 94, Issue 1, 1999, Pages 219-225

  Pfander, James E ^a  

^a NONE

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EID: 0042470506     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (40)

1. Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U.L. REV. 739 (1999) [hereinafter Downsizing].
2. Id. at 739-40, 763-66.
3. 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) [hereinafter Sovereign Immunity].
4. See Downsizing, supra note 1, at 742 n.14 (referring to work in press).
5. Id. at 742-43.
6. Id. at 742 n.14.
7. Id. at 743-56.
8. See id. at 744-47 (tracing evolution in petitioning from Magna Carta to the Glorious Revolution); id. at 755-56 (noting the wide gulf between the government structures of medieval England and those in place as of the date of the framing of the Constitution).
9. Compare Sovereign Immunity, supra note 3, at 930-34 (outlining the use of legislative petitions to secure relief of a judicial nature) with Downsizing, supra note 1, at 755, 756 (Parliament, as well as early American legislative bodies, spent much of their time considering petitions for relief that we would regard today as judicial in character).
10. Compare Sovereign Immunity, supra note 3, at 930-34 (outlining the use of legislative petitions to secure relief of a judicial nature) with Downsizing, supra note 1, at 755, 756 (Parliament, as well as early American legislative bodies, spent much of their time considering petitions for relief that we would regard today as judicial in character).
11. Compare Sovereign Immunity, supra note 3, at 934-45, 945-48, 953-59 (tracing the role of separation-of-powers thinking in the decision of American legislatures and the framers of the Constitution to shift responsibility for the determination of claims against the government to the courts; concluding that the framers shifted judicial functions to the federal courts) with (outlining the use of legislative petitions to secure relief of a judicial nature) with Downsizing, supra note 1, at 755, 756 (Parliament, as well as early American legislative bodies, spent much of their time considering petitions for relief that we would regard today as judicial in character).
12. Compare Sovereign Immunity, supra note 3, at 934-45, 945-48, 953-59 (tracing the role of separation-of-powers thinking in the decision of American legislatures and the framers of the Constitution to shift responsibility for the determination of claims against the government to the courts; concluding that the framers shifted judicial functions to the federal courts) with Downsizing, supra note 1, at 761 (noting that unlike Parliament, Congress is not a judicial body, and suggesting that the duty of a considered response to petitions attaches to the branch that exercises judicial power).
13. Compare Sovereign Immunity, supra note 3, at 957 (emphasizing that a right to petition the "government" entails a right to invoke the "'legislative Powers'" of Congress, the "'executive Power'" of the President, and the "'judicial Power'" of the federal courts) with Downsizing, supra note 1, at 761 (noting that unlike Parliament, Congress is not a judicial body, and suggesting that the duty of a considered response to petitions attaches to the branch that exercises judicial power).
14. Compare Sovereign Immunity, supra note 3, at 934-45, 945-48, 953-59 (tracing the role of separation-of-powers thinking in the decision of American legislatures and the framers of the Constitution to shift responsibility for the determination of claims against the government to the courts; concluding that the framers shifted judicial functions to the federal courts) with Downsizing, supra note 1, at 757 (noting the fundamental distinction between petitions that invoke the "'legislative Powers'" of Congress, the "'executive Power'" of the President and the "'judicial Power'" of the federal courts).
15. Compare Sovereign Immunity, supra note 3, at 902 , 903-06, 984 (distinguishing petitions to the political branches from those to the judicial branch; arguing that the traditional right of petitioners to a considered response appears outmoded as applied to either the legislative or executive branches of government but still functions well as applied to the judicial branch) with Downsizing, supra note 1, at 757-63 (agreeing that considered response inheres in the judicial function and arguing that it does not necessarily attach to the work of either Congress or the executive branch, except where executive agencies engage in judicial functions).
16. Compare Sovereign Immunity, supra note 3, at 957 (emphasizing that a right to petition the "government" entails a right to invoke the "'legislative Powers'" of Congress, the "'executive Power'" of the President, and the "'judicial Power'" of the federal courts) with , 903-06, 984 (distinguishing petitions to the political branches from those to the judicial branch; arguing that the traditional right of petitioners to a considered response appears outmoded as applied to either the legislative or executive branches of government but still functions well as applied to the judicial branch) with Downsizing, supra note 1, at 757-63 (agreeing that considered response inheres in the judicial function and arguing that it does not necessarily attach to the work of either Congress or the executive branch, except where executive agencies engage in judicial functions).
17. See Downsizing, supra note 1, at 757-58.
18. Id. at 764.
19. Id. at 763.
20. Id.
21. Id.
22. See Lane v. Pena, 518 US 187 (1996) (requiring that any waiver of governmental sovereign immunity appear with evident clarity on the face of the statute); Larson v. Domestic and Foreign Commerce Corp. 337 U.S. 682 (1949) (refusing to permit suit against officer to go forward to secure a test of title to property in possession of the federal government in light of available alternative modes of securing relief; effectively requiring Congress to authorize such litigation through the passage of further legislation). Cf. Seminole Tribe v. Florida, 517 U.S. 44 (1996) (applying an admittedly non-textual rule of sovereign immunity).
23. See Sovereign Immunity, supra note 3, at 945-50.
24. Id. at 950.
25. Id. at 963 n.233 (noting that Chief Justice John Jay distinguished between the sovereignty of the prince in foreign countries and the sovereignty of the people in America).
26. Id. at 966-67 n.242 (noting the distinction between the Marshall Court's analysis of issues of jurisdiction in connection with claims against the federal government and its invocation of sovereign immunity to adddress the suability of foreign governments).
27. Id. at 939-45 (tracing the influence of separation-of-powers thinking on the adoption of petition-of-right machinery in New York, Pennsylvania and Virginia).
28. Id. at 947-49 (linking the provisions for government suability in Article III to the provisions that enable a corporate entity to sue or be sued)
29. Id. at 973-78.
30. Id. at 978-80.
31. Id. at 906-26.
32. Id. at 935.
33. Id. at 956-62.
34. Despite a wide range of competing positions, current debates over the jurisdiction-stripping power of Congress include a broad consensus that the federal courts enjoy jurisdiction to determine their own jurisdiction and to test the constitutionality of any statute withdrawing that jurisdiction. (Lawson and Seidman apparently subscribe to such a view.) Among the constitutional limits on jurisdiction stripping, scholars treat those limits supplied by Article III as "internal" restraints and those supplied by other provisions of the Constitution (due process, equal protection, and so forth) as "external" restraints. See, e.g., RICHARD FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 362-63 (4th ed. 1996). The Court and some commentators have occasionally suggested that the Due Process Clause may prohibit Congress from placing government action entirely beyond the purview of the federal courts. Id. at 373-78. The Petition Clause might provide a preferable textual predicate for the posited power to test whether particular legislation impedes the right of individuals to secure an adjudication of government wrongdoing. Cf. Sovereign Immunity, supra note 3, at 988 n.337.
35. Despite a wide range of competing positions, current debates over the jurisdiction-stripping power of Congress include a broad consensus that the federal courts enjoy jurisdiction to determine their own jurisdiction and to test the constitutionality of any statute withdrawing that jurisdiction. (Lawson and Seidman apparently subscribe to such a view.) Among the constitutional limits on jurisdiction stripping, scholars treat those limits supplied by Article III as "internal" restraints and those supplied by other provisions of the Constitution (due process, equal protection, and so forth) as "external" restraints. See, e.g., RICHARD FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 362-63 (4th ed. 1996). The Court and some commentators have occasionally suggested that the Due Process Clause may prohibit Congress from placing government action entirely beyond the purview of the federal courts. Id. at 373-78. The Petition Clause might provide a preferable textual predicate for the posited power to test whether particular legislation impedes the right of individuals to secure an adjudication of government wrongdoing. Cf. Sovereign Immunity, supra note 3, at 988 n.337.
36. Id. at 950-53, 985 (acknowledging some degree of legislative discretion in framing a regime of judicial determination of claims resulting in payment from the Treasury).
37. The right to trial by jury, for example, requires an appropriation of funds to pay the cost of convening the jury in a court of law.
38. Id. at 902-03 (acknowledging that my account of the Petition Clause represented a departure from traditional accounts and would require a frank reappraisal of standard versions of both sovereign immunity and the right to petition).
39. The authors of Downsizing identify a prior reference in the literature to a possible link between the right to petition and the petition of right but they graciously characterize my paper as the first one systematically to advance the petition clause as a constitutional argument against sovereign immunity. See Downsizing, supra note 1, at 740 n.6.
40. Id. at 765 n. 129.