THE FOUNDATION’S INTERPRETATION
OF THE MEANING OF THE FIRST AMENDMENT’S
GUARANTEE OF THE RIGHT TO PETITION GOVERNMENT FOR REDRESS OF GRIEVANCES
(Excerpted from a much larger document still under development.)
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“[N]o provision of the Constitution was meant to be without effect…”
Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 139 (1803).
The We The People Foundation has researched the Right to Petition, its history, meaning and significance, in order to more effectively claim and exercise the power of the First Amendment to arrest and reverse violations of the Constitution. WTP has concluded the provision was meant to serve as the People’s primary means for holding elected officials accountable to individual Rights, apart from the electoral process and the second amendment. There is nothing in American history or jurisprudence that contradicts the Foundation’s interpretation which follows:
Although most Americans know little about the First Amendment Right to Petition, and may, at first glance, believe the Right is merely a redundant, restatement of the Right of Free Speech, a significant body of academic research regarding the legal and historical nature of the Right of Petition convincingly establishes that the Right to Petition is a profound, fundamental Right, separate and distinct from the other Rights enumerated in the First Amendment.
Furthermore, first guaranteed in writing, in Section 61 of the Magna Carta, over 800 years ago, the Right is an essential tool – a legal procedural instrument, provided by our Founders within the Constitution, itself, so that the People, particularly Individuals and Minorities, could peaceably, and directly, hold the Government accountable to the rest of the Constitution, securing their other Rights, against both errant government officials and the abuses of the political majority.
The Preamble to the Bill of Rights reads:
Congress of the United States, begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Note: The amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."
The First Amendment to the Constitution for the United States of America reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The term “Petition” is not defined in the Constitution. To be sure, a First Amendment Petition for Redress of Grievances is a unique species of formal communication between American Citizens and the government(s) they have established per their Constitutions (local, state and federal). Most importantly, a Petition for Redress is not a mere routine plea advocating on behalf of one political choice over another. A Petition for Redress is a formal, legal Notice to government officials from Citizens seeking official, substantive Redress to cure deprivations of their Individual Rights and/or violations of their Constitution(s).
To be protected as a Petition to the government for Redress of Grievances, such Petitions should embody certain components to ensure that the document is treated as a formal Petition and not a "pretended petition" or simple work of political advocacy.
For instance, the We The People organization has argued [1] that to be protected by the First Amendment, at a minimum, Petitions for Redress:
are serious and documented, not frivolous;
contain no falsehoods;
are not absent probable cause;
have the quality of a dispute;
come from a person outside of the formal political culture;
contain both a "direction" and a "prayer" for relief (i.e., substantive Redress);
have been punctilious;
address public, collective grievances;
involve constitutional principles not political talk;
are signed only or primarily by citizens;
are dignified;
have widespread participation and consequences;
are instruments of deliberation not agitation;
provide new information;
do not advocate violence or crime;
request answers to specific questions.
Therefore, as Jefferson advised, to determine the meaning of the last ten words of the First Amendment, one must look to the meaning of the words when they were added to the Constitution.
"On every question of construction 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 to William Johnson, 1823, ME 15:449
Applying Jefferson’s “original meaning” approach to interpreting the clause, WTP determined the last ten words of the First Amendment were added as an accountability clause, a critical element in the overall and comprehensive design of checks and balances of power between the People and the Government, the primary means for the People to peacefully hold elected officials accountable to the rest of the Constitution, whether regarding war, money, tax, privacy, property or any other principle, prohibition, restriction or mandate.
In part, the Foundation has derived its interpretation of the meaning of the Right based on EIGHT CLUES– that is, documentary evidence well known to the Framers between 1789 and 1791 as they drafted and added the First Amendment to the Constitution:
FIRST CLUE: Chapter 61 of The Magna Carta of 1215:
“If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us - or in our absence from the kingdom - to the chief justice - to declare it and claim immediate redress.
“If we, or in our absence abroad, the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon.
“Having secured the redress, they may then resume their normal obedience to us.”
Chapter 61 of the Magna Carta 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 Government, in the event of a violation by the Government of any provision of that Charter. The People were to transmit a Petition for a Redress of their Grievances, giving the Government 40 days to respond. If the Government failed to respond in 40 days, the People could legally retain their money or impose other forms of economic sanctions against the Government until the alleged Grievances were Redressed.
The Magna Carta, considered the founding document of English liberties, had an obvious influence on American liberties.
For instance, Section 39 of Magna Carta reads;
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
This Right finds its way into American Charters as evidenced by Article 21 from the Declaration of Rights in the Maryland Constitution of 1776 which reads:
"That no freeman ought to be taken, or imprisoned, or dis-seized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."
SECOND CLUE: The 1689 English Declaration of Rights and subsequent 1689 English Bill of Rights
“[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.
“And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.”
This obviously means government has an obligation to listen and respond to petitions for redress of grievances.
THIRD CLUE: Continental Congress to the Inhabitants of Quebec , Journals of the
Continental Congress 1774, Journals 1: 105-13
In 1774, the First Continental Congress 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 People’s “Great Rights.” 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.” [1]
[1] The reference to “despised petitions” acknowledges that no government would wish to be Petitioned or held accountable by its citizens for its actions.
FOURTH CLUE: The Declaration and Resolves on Colonial Rights of the First Continental Congress, October 14, 1774
Following the Boston Tea Party and the adoption of the Intolerable Acts, delegates gathered on September 5, 1774, at Philadelphia, in what was to become the First Continental Congress. Every colony but Georgia was represented. They voted on September 6 to appoint a committee "to state the rights of the Colonies in general, the several instances in which these rights are violated or infringed, and the means most proper to be pursued for obtaining a restoration of them" (Journals of the Continental Congress, 1774-1789, Washington, 1904, I, 26).
Resolved, N.C.D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same are illegal.
FIFTH CLUE: Thomas Jefferson in 1775: Reply to Lord North, 1775. Papers 1:225.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:
“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, and how improvident would be the surrender of so powerful a mediator.”
SIXTH CLUE: The Declaration of Independence (1776):
In 1776, the Declaration of Independence was adopted by the Continental Congress. The bulk of the document is a listing of the Grievances of the People had against a Government that had been in place in the colonies 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. Thus, 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….”
SEVENTH CLUE: The Early State Constitutions (1776-1800)
The meaning and importance the original States placed on the Right to Petition Government for Redress of Grievances, including Government’s obligation to listen and respond, is quite obvious upon review of the early State Constitutions, which were adopted during the years between 1776 and the adoption in 1791of the words of the First Amendment. Those State Constitutions were well known to delegates drafting the First Amendment, who represented all of those States. In addition, we are assisted in interpreting the meaning of the First Amendment by looking at what was being added to State Constitutions in the years that immediately followed the adoption of the First Amendment.
In 1776, the People of eight states (Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, Virginia) adopted constitutions. These were followed by New York and Georgia in 1777, and Massachusetts in 1780. Connecticut and Rhode Island elected to continue operating under their colonial charters until 1818 and 1843 respectively. The fourteenth state, Vermont, wrote its first constitution in 1777.
The learning curve for constitution writing and application coupled with the events of the War for Independence, the experiment under the Articles of Confederation, the formation of the new central government and finally the amendments added to that national constitution would cause many of the original constitutions to be rewritten and revised at least once and in some cases more than once by 1800:
· In 1778 South Carolina wrote its second constitution.
· In 1784 New Hampshire revised its original constitution.
· In 1786 Vermont revised its original constitution.
· In 1789 Georgia revised its original constitution.
· In 1790 South Carolina revised its second constitution.
· In 1790 Pennsylvania revised its original constitution.
· In 1792 Delaware revised its original constitution.
· In 1792 Kentucky wrote its first constitution.
· In 1793 New Hampshire extensively amended and clarified its 1784 constitution.
· In 1796 Tennessee wrote its first constitution.
· In 1798 Georgia revised its revised constitution.
· In 1799 Kentucky revised its original constitution.
Connecticut Colony Charter (1662)
“The only restrictions limiting the newly appointed charter's independent powers were, like other royal charters, the boundaries set by English law. While Connecticut powers had the ability to create new laws, they were to not exceed the limits or contradict with the rules set place by English government.” The Right to Petition the Government for Redress of Grievances, including Government’s obligation to respond was an integral part of English common law, going back to the Magna Carta.
Rhode Island Colony Charter (1663)
See Connecticut
New Hampshire State Constitution (1777)
New Hampshire State Constitution (1786)
[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
[Art.] 31. [Meetings of Legislature, for What Purposes.] The legislature shall assemble for the redress of public grievances and for making such laws as the public good may require.
[Art.] 32. [Rights of Assembly, Instruction, and Petition.] The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.
South Carolina State Constitution (1776)
Virginia State Constitution (1776)
SEC. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.
…Whereas George the third, King of Great Britain and Ireland, and elector of Hanover, heretofore intrusted with the exercise of the kingly office in this government, hath endeavoured to prevent, the same into a detestable and insupportable tyranny…
…By answering our repeated petitions for redress with a repetition of injuries:
New Jersey State Constitution (1776)
Delaware State Constitution (1776)
Delaware Declaration of Rights (1776)
Sect. 8. That for redress of grievances, and for amending and strengthening of the laws, the Legislature ought to be frequently convened.
Sect. 9. That every man hath a right to petition the Legislature for the redress of grievances in a peaceable and orderly manner.
Pennsylvania State Constitution (1776)
Chapter 1, Section XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition or remonstrance.
Chapter 2 Sect. 9. The members of the house of representatives shall be chosen annually by ballot, by the freemen of the commonwealth, on the second Tuesday in October forever, (except this present year,) and shall meet on the fourth Monday of the same month, and shall be styled, The general assembly of the representatives of the freemen of Pennsylvania, and shall have power to choose their speaker, the treasurer of the state, and their other officers; sit on their own adjournments; prepare bills and enact them into laws; judge of elections and qualifications of their own members; they may expel a member, but not a second time for the same cause, they may administer oaths of affirmations on examination of witnesses; redress grievances; impeach state criminals; grant charters for incorporation; constitute towns, boroughs, cities and counties; and shall have all other powers necessary for the legislature of a free state or commonwealth: But they shall have no power to add to, alter, abolish, or infringe any part of this constitution.
Pennsylvania State Constitution (1790)
Article IX, Sec. 2. That all power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, and happiness. For the advancement of those ends, they have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.
Article IX, Sec. 20. That the citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by petition, address, or remonstrance.
Article IX, Sec. 26. To guard against transgressions of the high powers which we have delegated, we declare, that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate.
Maryland State Constitution (1776)
IV. That all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct; wherefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old or establish a new government. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
X. That, for redress of grievances, and for amending, strengthening and preserving the laws, the Legislature ought to be frequently convened.
XI. That every man hath a right to petition the Legislature, for the redress of grievances, in a peaceable and orderly manner.
North Carolina State Constitution (1776)
13. That every freeman restrained of his liberty is entitled to a remedy, to inquire in to the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed.
18. That the people have a right to assemble together, to consult for the common good, to instruct their representatives, and to apply to the legislature for redress of grievances.
20. That, for redress of grievances, and for amending and strengthening the laws, elections ought to be often held.
Georgia State Constitution (1777)
Georgia State Constitution (1789)
New York State Constitution (1777)
Whereas His Britannic Majesty, in conjunction with the lords and commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these united colonies from the protection of his Crown; and whereas no answers whatever to the humble petition of the colonies for redress of grievances ….
…We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are, life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness….
…In every stage of these oppressions, we have petitioned for redress m the most humble terms. Our repeated petitions have been answered only by repeated injury. A prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.
I. This convention, therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that no authority shall, on any presence whatever, be exercised over the people or members of this State but such as shall be derived from and granted by them.
Vermont State Constitution (1777)
Preamble. In the several stages of the aforesaid oppressions, we have petitioned his Britannic majesty, in the most humble manner, for redress, and have, at very great expense, received several reports in our favor; and in other instances, wherein we have petitioned the late legislative authority of New-York, those petitions have been treated with neglect.
Chapter 1 – Section XVIII. That the people have a right to assemble together to consult for their common good--to instruct their representatives; and to apply to the Legislature for redress of grievances, by address, petition or remonstrance.
Chapter 2, SECTION VIII. The members of the House of Representatives shall be chosen annually, by ballot, by the freemen of this State, on the first Tuesday of September, forever (except this present year) and shall meet on the second Thursday of the succeeding October, and shall be stiled, The General Assembly of the State of Vermont; and shall have power to choose their Speaker, Secretary of the State, their Clerk, and other necessary officers of the House--sit on their own adjournments--prepare bills and enact them into laws--judge of the elections and qualifications of their own members--they may expel a member, but not a second time for the same cause--They may administer oaths (or affirmations) on examination of witnesses--redress grievances--impeach State criminals--grant charters of incorporation--constitute towns, boroughs, cities, and counties, and shall have all other powers necessary for the Legislature of a free State, but they shall have no power to add to, alter, abolish, or infringe any part of this constitution. And for this present year the members of the General Assembly shall be chosen on the first Tuesday of March next, and shall meet at the meeting-house, in Windsor, on the second Thursday of March next.
Vermont State Constitution (1786)
Preamble. In the several stages of the aforesaid oppressions, we have petitioned his Britannic majesty, in the most humble manner, for redress, and have, at very great expense, received several reports in our favor; and in other instances, wherein we have petitioned the late legislative authority of New-York, those petitions have been treated with neglect.
Chapter 1 – Section XXII. That the people have a right, to assemble together to consult for their common good--to instruct their representatives--and to apply to the Legislature for redress of grievances, by address, petition, or remonstrance.
Chapter 2 – Section IX. The representatives, so chosen, (a majority of whom shall constitute a quorum for transacting any other business than raising a State tax, for which two thirds of the members elected shall be present) shall meet on the second Thursday of the succeeding October, and shall be styled, the general assembly of the state of Vermont: they shall have power to choose their speaker, secretary of the state, their clerk, and other necessary officers of the house--sit on their own adjournments--prepare bills, and enact them into laws--judge of the elections and qualifications of their own members: they may expel members, but not for causes known to their constituents antecedent to their election: they may administer oaths or affirmations, in matters depending before them--redress grievances--impeach State criminals--grant charters of incorporation--constitute towns, boroughs, cities, and counties: they may annually, in the first session after their election, and at other times, when vacancies happen, choose delegates to Congress and shall also, in conjunction with the Council, annually (or oftener if need be) elect judges of the supreme and several county and probate courts, sheriffs, and justices of the peace; and also, with the Council, may elect major-generals and brigadier-generals, from time to time, as often as there shall be occasion: and they shall have all other powers necessary for the Legislature of a free and sovereign State: but they shall have no power to add to, alter, abolish, or infringe any part of this constitution.
Massachusetts State Constitution (1780)
Preamble. The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.
Art. V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them.
Art. VII. Government is instituted for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interest of any one man, family, or class of men; therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same when their protection, safety, prospertiy, and happiness require it.
Art. XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws.
Art. XIX. The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.
Art. XXII. The legislature ought frequently to assemble for address of grievances, for correcting, strengthening, and confirming the laws, and for making new laws, as the common good may require.
EIGHTH CLUE: Fordham Law Review May, 1998, 66 Fordham L. Rev. 2153. ARTICLE:
THE VESTIGIAL CONSTITUTION: THE HISTORY AND SIGNIFICANCE
OF THE RIGHT TO PETITION. Gregory A. Mark
According to Professor Mark’s historical review of the Right to Petition for Redress, prior to 1836, when a member of Congress received a Petition for Redress it was always sent to a Committee (unless totally frivolous or libelous), and every Monday Congress dealt with Petitions for Redress. In 1836, for the first time, Congress passed a “gag rule” declaring it would permanently table - i.e., did not have to listen or respond to Petitions for Redress from abolitionists. Quoting from Professor Mark’s work:
Under Article I, Section 5 of the Constitution, "Each House may determine the
Rules of its Proceedings." 294 The First Amendment, however, provides that,
"Congress shall make no law ... abridging ... the right of the people ... to
petition the Government for a redress of grievances." 295
Those two sections of the Constitution came into direct conflict in the years
1836 to 1844, as the House of Representatives attempted to quell the rising
number of abolition petitions its members had been receiving. The attempts to
stifle the petitions became known as the gag rule or gag law. For eight years,
the existence of the rule was a source of tremendous controversy in the House
and the nation. 296
Abolitionism was the reason for the gag rule. The rule was the reaction of
southern congressmen who felt that the South could no longer bear the insults
contained in the language and content of abolition petitions. Designed to
staunch the flow of such petitions to the House, it was sweeping in its breadth.
As first adopted on May 26, 1836, the rule and its preamble were to signal
abolitionists that the House of Representatives was not going to consider
the subject of the abolition of slavery and therefore it was superfluous to
continue the attempts to agitate the matter.
Resolved, That all petitions, memorials, resolutions, propositions, or papers,
relating in any way, or to any extent whatever, to the subject of slavery, or the
abolition of slavery, shall, without being either printed or referred, be laid upon
the table, and that no further action whatever shall be had thereon. 299
This seminal resolution was to be re-adopted in nearly identical forms during
the beginning of each session of Congress until finally made a standing rule in
1840. 300 The standing rule was not repealed until the opening of the second
session of the Twenty-eighth Congress, on the resolution offered by John
Quincy Adams. 301
NINTH CLUE: The works of other modern day legal scholars have also contributed to the Foundation’s interpretation of the meaning of the First Amendment’s “accountability clause, ” including the following:
· A Short History
S. Higginson, Yale Law Journal
· Vestigial Constitution
G. Mark, Fordham Law Review
· Neglected But Absolute
N. Smith, U. of Cincinnati Law Review
· Sovereign Immunity & The Right
J. Pfander, Northwestern U. Law Review
· Bill of Rights as a Constitution
A. Amar, Yale Law Journal
· Court Access: A 1st Amend. Challenge.
C. Andrews, Ohio State Law Journal
· Implications For Rule 11 Sanctions
Harvard Law Review
· Petition & Access To The Court
C. Andrews, Ohio State Law Journal
· How The Judiciary Stole The Right To Petition
J. Wolfgram, UWLA Law Review
· Libelous Petitions
E. Schnapper, Iowa Law Review
The Right to Petition the Government for Redress of violations of the Law is a separate, distinctive Right. The Rights to free speech, press and assembly originated as derivative Rights insofar as they were necessary to protect the pre-existing Right to Petition. Petitioning, as a way of holding government accountable to natural Rights, originated in England in the 11th century[2] and gained recognition as a Right in the mid 17th century.[3] Free speech Rights first developed because members of Parliament needed to discuss freely the Petitions they received.[4] Publications reporting Petitions were the first to receive protection from the frequent prosecutions against the press for seditious libel.[5] Public meetings to prepare Petitions led to recognition of the Right of Public Assembly.[6]
In addition, 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, [7] the American Colonies, [8] and the first Continental Congress[9] gave official recognition to the Right to Petition, but not to the Rights of Free Speech or of the Press.[10]
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 free speech and press in two separate sections.[11] 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 enumerated rights in the First Amendment were separate Rights that should be specifically protected.[12]
The zone of interest to be protected here is government accountability through citizen participation. Petitioning government for Redress of Grievances has played a key role in the development, exercise and enforcement of popular sovereignty throughout British and American history. [13] In medieval England, petitioning began as a way for barons to inform the King of their concerns and to influence his actions.[14] Later, in the 17th century, Parliament gained the Right to Petition the King and to bring matters of public concern to his attention.[15] This broadening of political participation culminated in the official recognition of the right of Petition in the People themselves.[16]
The People used this newfound Right to question the legality of the government’s actions,[17] to present their views on controversial matters,[18] and to demand that the government, as the creature and servant of the People, be responsive to the popular will.[19]
In the American colonies, dis-enfranchised groups could use Petitions to seek government accountability for their concerns and to rectify government misconduct.[20]
By the nineteenth century, Petitioning was described as “essential to … a free government”[21] – an inherent feature of a republican democracy,[22] and one of the chief means of enhancing government accountability through the participation of citizens.
In particular, this interest in government accountability was understood to demand government response to petitions.[23]
American colonists, who exercised their Right to Petition the King or Parliament, [24] expected the government to receive and respond to their Petitions.[25] The King’s persistent refusal to answer the colonists’ grievances outraged the colonists and as the “capstone” grievance, was the most significant factor that led to the American Revolution.[26]
Frustration with the British government led the Framers to consider incorporating a people’s right to “instruct their Representatives” in the First Amendment.[27] Members of the First Congress easily defeated this right-of-instruction proposal.[28] Some discretion to reject some petitions, they reasoned, would not undermine government accountability to the People, as long as Congress had a duty to consider petitions and fully respond to them.[29]
Congress’s response to Petitions in the early years of the Republic also indicates that the original understanding of Petitioning included a governmental duty to respond. Congress viewed the receipt and serious consideration of every Petition as an important part of its duties.[30]
Congress referred Petitions to committees[31] and even created committees to deal with particular types of Petitions.[32] Ultimately, most Petitions resulted in either favorable legislation or an adverse committee report. [33]
Thus, throughout early Anglo-American history, general petitioning (as opposed to judicial petitioning) allowed the people a means of direct political participation that in turn demanded government response and promoted accountability.
The high Court has characterized the interest underlying the Petition Right broadly as an interest in self-government. McDonald v. Smith, 472 U.S. 479, 483 (1985).
The Petition Clause confers a positive right for citizens to participate directly in government and to demand that the government consider and respond to their Petitions.
Petitioning the government for a Redress of Grievances is the only non-violent way the People have, other than reliance on the electoral process and majority rule, to hold their government accountable to its primary role of protecting the individual’s, unalienable rights. If the servant government of the People cannot be held constitutionally obligated to listen and honestly respond to the citizen’s Petitions for Redress, individual Rights will be predictably and irretrievably lost to both the corrupt acts of government officials and the errant will of the majority as expressed though the electorate.
The historical record shows that the Framers and ratifiers of the First Amendment clearly understood the Petition Right as distinct from the ancillary Rights of free expression. The ratifying states also shared this understanding of the Petition Right as separate from the other First Amendment Rights.
The zone of interests that are uniquely served by Petitioning are all individual Rights, enumerated and un-enumerated, according to the First and Ninth Amendments. Without the government’s obligation to respond to Petitions for Redress of Grievances, the People have no non-violent way to enforce their individual, unalienable Rights against government misconduct.
Under the Constitution, Petitioning for Redress is not a Right that is given only to be so circumscribed that it exists in principle but not in fact. The Right to Petition the Government for Redress of Grievances is nothing short of the capstone Right through which all other Rights are peacefully enforced and the sovereignty of the People is directly exercised by Individuals. For instance, the exercise of the Right to Petition is not to be confined to, or subsumed by, freedom of expression.
Based on the above sources, the Foundation has interpreted the last ten words of the First Amendment to mean that whenever the People had evidence that the Government had stepped outside the boundaries drawn around its power by the Letter and Spirit of the Constitution, the People had a Right to a Remedy and the Right to Petition the Government for a Redress of the Grievance, the Government was obligated to respond, and if the Government did not respond, the People had the Right of Enforcement.
The Right to Remedy
It is also well settled that with every Right there is a remedy. "It is a settled and invariable principle in the laws of England that every right when with-held must have a remedy, and every injury it’s [sic] proper redress." William Blackstone. In other words, where there is a wrong, there is a remedy, and where there is Right there is a remedy. A Right without a remedy is a vex thing.
The right to a remedy dates from the Magna Charta of 1215, confirmed in 1225 as Chapter 29 of the “final version” of Magna Carta, which reads, in modern English:
“NO freeman shall be taken or imprisoned or disseised of any freehold, or liberties, or free customs, or outlawed, or banished, or in any other way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny, or delay right or justice.”
Chapter 29 of Magna Carta has been described by Edward Coke as a “roote” from which “many fruitfull branches of the law of England have sprung,” including the protection of individuals’ rights from official acts of oppression, the precursor to modern due process. See Edward Coke, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 55, 1641 (New York: William S. Hein Co., 1986).
Sir William Blackstone described the right to a remedy as essential to the preservation of an individual’s absolute rights to life, liberty, and property.
“For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which are vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration.” 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, published between1775-1769, at124. For example, protection from homicide is an absolute right; an import duty on wool is a relative right. Man’s laws may either permit or forbid relative rights without offending natural law. 1 WILLIAM BLACKSTONE, COMMENTARIES at 42-43, 126.”
Blackstone divided the rights of persons into two categories:
1) The three absolute rights existing in a state of nature – e.g., personal security (including the right to life and limb, and, less importantly, to body, health, and reputation), personal liberty (freedom of movement and freedom from imprisonment without due course of law), and property (the free use, enjoyment, and disposal of acquisitions, without interference or diminution except by law). 1 WILLIAM BLACKSTONE, COMMENTARIES at 129-40.
2) The other rights arising only because men live in society and have relationships with other people – e.g., the relationships between master and servant, husband and wife, parent and child, and guardian and ward. 3 WILLIAM BLACKSTONE, COMMENTARIES at 23.
English Law established five other auxiliary or subordinate rights of the individual, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. 1 WILLIAM BLACKSTONE, COMMENTARIES at 140-41.
The right to a remedy was one of the five subordinate rights through which society vindicated its primary task of protecting the absolute rights of men. The other four subordinate rights include the constitution, powers, and privileges of parliament; the limitations of the king’s prerogative; the right to petition the king or either house of parliament for redress of injury; and the right to bear arms in self-defense. 1 WILLIAM BLACKSTONE, COMMENTARIES at 141-44.
Thus, once a person was injured, the right to an “adequate remedy” immediately attached, though judicial process might be necessary to ascertain the exact parameters of that right. 3 WILLIAM BLACKSTONE, COMMENTARIES at 116.
The right to a remedy dictated that common law courts must be courts of general jurisdiction, open to hear any and all cases involving injury to individual rights, “[f]or it is a settled and invariable principle in the laws of England that every right when withheld must have a remedy, and every injury its proper redress.” 3 WILLIAM BLACKSTONE, COMMENTARIES at 109.
Thus when Blackstone quoted Coke’s dictum that justice be granted fully and without delay, he was concerned not merely with the physical availability of judicial process, but with the substantive opportunity to assert claims to protect absolute rights. 1 WILLIAM BLACKSTONE, COMMENTARIES at 141. “Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject and the law be duly administered therein” to satisfy the subordinate right of “applying to the courts of justice for redress of injuries.”
Ubi Jus Ibi Remedium is the Latin legal maxim which means "where there is a right there is a remedy". The basic principle contemplated in the maxim is that, when a person's right is violated the victim will have an equitable remedy under law. The maxim also states that the person whose right is being infringed has a right to enforce the infringed right through any action before a court. All law courts are also guided with the same principle of Ubi Jus Ibi Remedium .
Silence is Admission When One Has a Duty to Respond
Regarding the Government’s obligation to respond to proper Petitions for Redress, “Silence can…be equated to fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading.” U.S. v Tweel, 550 F.2d 297,299 (5th Circuit, 1977).
A Right Not Enforceable is Not a Right
The Foundation’s interpretation of the meaning of the last ten words of the First Amendment includes the fact that an individual has the Right of Enforcement, i.e., to non-violently enforce the Constitution if the Government ignores its obligation to timely answer his proper First Amendment Petition for Redress challenging the constitutionality of the Government’s actions. That First Amendment’s Right of Enforcement is buttressed by the Ninth Amendment, which reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It is well settled in American Jurisprudence that any Right [principle, prohibition, restriction and mandate of the Declaration of Independence and Constitution] that is not enforceable is not a Right. See ROBERT L. SCHULZ, ET AL. v. STATE OF NEW YORK, ET AL. 84 N.Y.2d 231 (June 30, 1994).
In sum, the Foundation’s interpretation of the meaning of the Petition Clause of the First Amendment, particularly the obligation of the Government to respond and the People’s Right of Enforcement if Government refuses to respond, is strongly supported by all of history, from the English Magna Carta to the American Declaration of Independence and beyond.
There is nothing in American History or Jurisprudence that contradicts the Foundation’s interpretation of the meaning of the First Amendment’s Right to Petition for Redress.
A Government that ignores the Constitution and then ignores the People’s First Amendment Petitions for Redress of the Grievances and Right to a Remedy, would obviously be in violation of the essential underlying principle of popular sovereignty, undermining the Republic and the first of the Great Rights, “Government based upon the consent of the People.” [34]
The Government’s obligation to respond to proper Petitions for Redress of Grievances, especially when the oppressions are ultra vires, unconstitutional government acts—i.e., constitutional torts, is not changed by the fact that the Petition Clause lacks an affirmative statement that government shall respond to Petitions for Redress of Grievances.
For instance, while the 26th Amendment guarantees all citizens above the age of 18 the Right to Vote, it does not contain an affirmative statement that the votes shall be counted. The enumeration in the Constitution of the Right to Vote, and to Right to Petition the Government for Redress of Grievances, should not be construed to deny or disparage the Right to have the Votes counted or the Right to a response to Petitions for Redress of Grievances.
“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).
[1] We The People v United States, U.S. Court of Appeals for the DC Circuit, Docket
Number 05-5359, Appellants’ Brief, dated Feb 22, 2006, page 12.
[2] 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.
[3] 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.
[4] See David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right to Petition, 9 LAW & HIST. REV. 113, at 115.
[5] See Smith, supra n.4, at 1165-67.
[6] See Charles E. Rice, Freedom of Petition, in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 789, (Leonard W. Levy ed., 1986)
[7] See Smith, supra n4, at 1165.
[8] 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).
[9] See id. at 464 n.52.
[10] 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.
[11] 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).
[12] See 5 BERNARD SCHWARTZ, THE ROOTS OF THE BILL OF RIGHTS at 1089-91 (1980).
[13] 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).
[14] The Magna Carta of 1215 guaranteed this Right. See MAGNA CARTA, ch. 61, reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n.5, at 187.
[15] See PETITION OF RIGHT chs. 1, 7 (Eng. June 7, 1628), reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra n5 at 187-88.
[16] 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.
[17] 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.
[18] See Smith, supra n4, at 1165 (describing a Petition regarding contested parliamentary elections).
[19] 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.
[20] See RAYMOND BAILEY, POPULAR INFLUENCE UPON PUBLIC POLICY: PETITIONING IN EIGHTEENTH-CENTURY VIRGINIA 43-44 (1979).
[21] 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).
[22] 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]”).
[23] See Frederick, supra n7 at 114-15 (describing the historical development of the duty of government response to Petitions).
[24] 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.
[25] See Frederick, supra n7 at 115-116.
[26] 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).
[27] See 5 BERNARD SCHWARTZ, supra n15, 1091-105.
[28] The vote was 10-41 in the House and 2-14 in the Senate. See id. at 1105, 1148.
[29] 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).
[30] 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” (quotation omitted)).
[31] 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.
[32] 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).
[33] See Higginson, n34 at 157.
[34] Continental Congress to the Inhabitants of Quebec, Journals of the Continental Congress of 1774,
1: 105-113
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