Remembering an oft-forgotten freedom

Saturday, March 5, 2011

The “right of the people … to petition the Government for a redress of grievances,” the last freedom of the First Amendment, is the most forgotten freedom. Each year when the First Amendment Center commissions its State of the First Amendment survey, petition is the freedom few can name (only 6% in 2010). Why is the right of petition the forgotten freedom when it has deep historical roots?

The right to petition the government can be traced to several English documents, including the Magna Carta (1215). As the British colonists settled in America they began to develop their own legal codes, declarations and charters. Within these was the right to petition. By the time James Madison drafted the federal Bill of Rights, most states included the right of petition in their state bill of rights. Constitutional scholars agree, though, that the right of petition the colonists sought to be included in the Bill of Rights is very different in its use and meaning from the interpretation of the right today. It is likely that including the right of petition in the national Bill of Rights may have led to its own demise in its originally intended form.

If a colonist had grievance against a neighbor he would petition the local assembly to deal with the issue. According to Stephen Higginson’s 1986 article, “A Short History of the Right to Petition Government for Redress of Grievances,” these government entities were “vested with a variety of police, legislative and judicial powers.” They responded to disputes over land, employment wages and packaging of tobacco products, and they disciplined misconduct by servants, writes Higginson. As we see today, there was no difference between the constituents’ agenda and that of the government representatives. The assemblies responded directly to the petitions of the people. This system often led to a backlog of petitions but it also helped the government entities learn what was happening in their communities. Often the information in the petitions helped identify those in need — and money was made available to the sick, the orphans and others facing hardships.

After passage of the national Bill of Rights in 1791, Congress spent decades responding to individual petitions. According to Higginson, lawmakers dealt with such issues as the National Bank, election results, the Alien and Sedition Acts, the expulsion of the Cherokees from Georgia and the slave trade. In the 19th century this petitioning system began to break down. Congress began the day reading the petitions from each state. If a state had too many petitions, the business of Congress could be halted for the day. The abolitionists seized upon the right to petition as a way to make Congress deal with the issue of slavery, flooding Congress with abolitionist petitions. Southern lawmakers responded, Higginson writes, by urging their colleagues to change how Congress handled petitions. They argued that although the right of petition was a way for individuals to state their grievances, Congress was in no way required, as lawmakers were in Colonial times, to act upon each petition. This argument proved successful, and Congress passed a set of gag orders, effectively ending the right of petition in its original form.

The right of petition eventually became viewed more as the right of free expression and now generally is coupled with other First Amendment freedoms, such as assembly and speech. But petition is not dead and should not be forgotten. The right is the genesis of much of the legislation that moved this country forward through turbulent times. Legislators responded to the letter-writing campaigns during the women’s suffrage movement and we now have the 19th Amendment. Congress and the president took note in 1963 when more than 250,000 people demonstrated in Washington, D.C., to urge passage of civil rights legislation. We now have the Civil Rights Act of 1964 prohibiting employment discrimination.

Today we continue to see grass-roots groups petitioning Congress to change laws. A group of mothers grieving for their children killed by drunk drivers got together to form MADD 30 years ago, and as a result of their efforts, DUI laws have been made more stringent.

Examples of petition in action in 2010:

  • Alaska voters asked to see a list of write-in candidates.
  • In Tennessee a judge ruled that requirements for third-party candidates to get on the voting ballot were too burdensome.
  • The Michigan House of Representatives approved a bill that protects people from retaliatory lawsuits when they speak out on free-speech issues.
  • The U.S. Supreme Court agreed to hear a case, Borough of Duryea v. Guarnieri, involving a government employee who claims he was retaliated against for exercising his right to petition the government.

We may not be able to remember it when answering a survey question, but this mighty right of petition is part of our daily lives.

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