The Freedom of Petition Clause

Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.

—David E. Bernstein & R. Trent McCotter

Introduction

The Supreme Court has observed that “[t]he right to petition is in some sense the source of other fundamental rights, for petitions have provided a vital means for citizens to request recognition of new rights and to assert existing rights against the sovereign.”¹ Modern Supreme Court jurisprudence has almost completely collapsed the right to petition into the freedom of speech, but an analysis of the text and history of the First Amendment suggests that the petition right has independent scope. The right to petition has a long-standing Anglo-American pedigree. The right to present formal written petitions to the king and later to Parliament has long been considered a right independent of general free speech and press rights.

English History

The U.S. Supreme Court has recognized that Magna Carta “itself was King John’s answer to a petition from the barons.”² Chapter 61 of Magna Carta established a multi-step petitioning process as the charter’s sole enforcement mechanism. First, twenty-five barons were sworn to uphold Magna Carta. Second, nobles had to demonstrate to four of these barons that the king or his officers had transgressed the king’s promises. It is still debated whether any four barons could perform that role, or whether four barons were specifically designated. Third, if the nobles met their burden, then those barons would relay the transgression to the king or his justiciar. The barons would ask, or petition, the king to remedy the transgression without delay. In Magna Carta’s Latin, the barons would submit a “petent,” which has the same root as “petition.”³ Fourth, the king had forty days to redress the offense in the petition. Fifth, if the king failed to redress the offense, the full contingent of twenty-five barons had “a legal right to organize rebellion” against the king.⁴

At the time, the king was considered above the law, but petitions were the only method by which to seek redress for illegal royal action, and the king was on notice that ignoring the petitions could directly lead to legalized revolt. Although powerful in theory, this right to petition quickly proved futile in practice, especially after a second committee consisting of those more loyal to the king was appointed to “control” the group of twenty-five.⁵

The right to petition expanded beyond nobles.⁶ By 1669, Parliament recognized that “it is an inherent right of every commoner of England to prepare and present Petitions to the house of commons in case of grievance.” Moreover, the law prohibited punishing a person for submitting a petition: “no court whatsoever hath power to judge or censure any Petition presented.”⁷ The 1689 Declaration of Rights established that it is “the Right of the Subjects to petition the King,” and “all Commitments and Prosecutions for such Petitioning are Illegal.”⁸

By the late seventeenth century, petitioning became “an intrinsic part of English political life.”⁹ Legislatures referred to petitions and bills interchangeably. Petitions became the leading method for people to interact with their government.¹⁰ Moreover, the king and Parliament generally treated petitions seriously, as they would often set the legislative agenda.¹¹

American History

Petitioning naturally spread to the American colonies. The Massachusetts Body of Liberties (1641) was the first colonial charter to provide explicit protection for the right to petition. It secured the right to “present any necessary motion, complaint, petition, Bill or information” at “any publique Court, Councel, or Towne meeting.”¹² Colonial governments generally recognized the rights to freedom of speech and press.¹³ However, there is little evidence that these rights included the right to petition, which had its own legal pedigree.

In 1774, the Declaration and Resolves of the First Continental Congress recognized an even broader right: that the colonists “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.”¹⁴ This provision emphasized the government’s lack of power to punish a citizen for petitioning. In the Revolutionary era, this right to petition was more robust than the more general right to freedom of speech. By 1776, Delaware, New Hampshire, North Carolina, Pennsylvania, and Vermont expressly recognized the right to petition.¹⁵ Other states recognized the right informally.¹⁶

The Declaration of Independence cited violations of the petition right by King George III as a justification for the American Revolution: “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.”¹⁷

After independence, most state constitutions expressly adopted a right to petition.¹⁸ In the states, petitions sought redress for public issues and private matters such as estate distributions, divorce proceedings, and criminal sentence reductions.¹⁹ The Articles of Confederation provided that when there were conflicts between two states, “the legislative or executive authority, or lawful agent of any state in controversy with another, shall present a petition to congress, stating the matter in question, and praying for a hearing.” At that point, the Congress would serve as “the last resort on appeal.”²⁰

Adoption of the Petition Clause

Despite the significance of the petition right, it was not debated during the Constitutional Convention. However, it was raised during the ratification debates. Centinel, a prominent Anti-Federalist, lamented the “omission of” a “grand palladium” of liberty that would serve as a “barrier between liberty and oppression.”²¹ Under “the new plan” of government, Centinel argued, there was “no declaration . . . that the right of the people to assemble peaceably for the purpose of . . . petitioning or remonstrating to the federal legislature ought not to be prevented” and “that the liberty of the press be held sacred.”²² Federal Farmer similarly declared that “[t]he people have a right to . . . petition the government for a redress of wrongs.”²³

Several state conventions proposed adding a petition clause tracking their own constitutions. From May through August 1788, New York, North Carolina, Rhode Island, and Virginia proposed an identical “right to petition or apply to the legislature for redress of grievances.”²⁴

The First Congress took up the issue, and on June 8, 1789, Representative James Madison of Virginia proposed a stronger version of the right: The “people shall not be restrained . . . from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”²⁵ Perhaps to match the language of the state proposals more closely, the House Committee of Eleven softened the language in its July 28, 1789, report: “[T]he right of the people . . . to apply to the Government for redress of grievances, shall not be infringed.”²⁶

On August 15, 1789, the House approved a version stating that the “right of the people . . . to apply to the government for redress of grievances shall not be infringed.”²⁷ That same day, representatives from several states proposed that “to instruct their representatives” be added, but this was voted down.²⁸ A similar addition also failed in the Senate on September 3.²⁹ The next day, however, the Senate approved modified language that included “petition” for the first time: “Congress shall make no law, abridging . . . the right of the People . . . to petition the Government for a redress of grievances.”³⁰ This language matched the clause’s final form, though with slight changes.

The First Amendment would separate the right to petition from the rights to freedom of speech and press. This differentiation followed the historical roots of the petition right as separate and independent. Madison, however, recognized that each allowed the people to “communicate their will” in a different way: Freedom of speech let the people “privately advise” their representatives, “liberty of the press” meant that they could “publicly address their representatives,” and the right to petition let them “declare their sentiments by petition to the whole body.”³¹

Early Practice

Even before the Petition Clause was ratified, the First Congress received more than 600 petitions. This right preexisted the Constitution and was merely recognized by the Bill of Rights. Typically, these petitions included a list of grievances and signatures. Under the Constitution, Congress was not obligated to address the grievances, but as a matter of practice, it often afforded a formal response.³² For example, on August 7, 1789, John White, who had been appointed to settle debts between the United States and several states, filed a petition seeking compensation for his work. The House referred the matter to three representatives to prepare a report on the House’s “opinion.”³³ Many petitions “proposed statutory language” on public matters like commerce, public finance, and slavery.

This last topic would prove to be the most controversial, as Congress received many petitions on the subject of slavery. In 1836, the House adopted a rule that “no further action” would be taken on “all petitions . . . relating” to “slavery, or the abolition of slavery.”³⁴ Four years later, the House ruled that it would not receive abolitionist petitions at all.³⁵ In 1844, the House repealed the “gag rule” after a fierce debate over the right to petition.³⁶

Judicial Precedent

The text of the Petition Clause expressly protects only the right to submit a formal grievance to the government; it does not require the government to consider that grievance. Nor does the text expressly prohibit the government from punishing a person for submitting such a petition. Yet the Supreme Court has adopted these historic principles as the core of the Petition Clause.³⁷

However, over time, other aspects of the petition right have changed. For example, the sovereign is not required to respond to petitions on pain of triggering rebellion, as in Magna Carta. Rather, the Supreme Court has held that the government has no “affirmative obligation . . . to listen [or] to respond” to petitions.³⁸ Moreover, in England, the right protected only petitions directed to the legislature or executive. There was no common-law right to petition the judiciary. In the United States, the Supreme Court has indicated that the Petition Clause also “protects the right of individuals to appeal to courts . . . for resolution of legal disputes.”³⁹ Justices Clarence Thomas and Antonin Scalia have countered that, historically, the right applies only to requests made to the legislative or executive branches.⁴⁰

Petitions and Free Speech

In modern times, the right to petition has become somewhat anachronistic. Democratic politics gradually replaced petitioning as the primary means for constituents to express their views to their representatives. In turn, lobbying became a common means of direct access to legislators. Today, Congress treats most petitions in a pro forma way. They are ignored unless a Senator or Representative presents them, in which case they are entered into the House or Senate Journal and printed in the Congressional Record.⁴¹

Beyond changes in the political process, the Supreme Court has consistently interpreted the clause as a guarantee of the freedom of speech.⁴² This change has rendered the petition right largely superfluous to speech and assembly rights.

Borough of Duryea, Pennsylvania v. Guarnieri (2011) held that the right to petition provides no protection to government employees that is either greater than or different from the protection they would enjoy pursuant to the right to freedom of speech. In that case, the government employee “just as easily could have alleged” a free speech claim as a petition claim.⁴³ Boy Scouts of America v. Dale (2000) recognized a “right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.”⁴⁴ The petition right has found its modern home as an aspect of the amalgamated right of “expressive association” rather than as a distinct right with its own scope and privileges.

The most robust modern petition right is in the realm of administrative agency processes. The Administrative Procedure Act (APA) requires that every agency “give an interested person the right to petition for the issuance, amendment, or repeal of a rule.”⁴⁵ When agencies propose legislative rules, they typically must provide public notice, accept comments from the public, and respond to comments that raise significant arguments on pain of having the regulation set aside or remanded by a court.⁴⁶ In this way, the APA harkens back to Magna Carta’s harsh enforcement mechanism.

Open Questions

• To what extent does the Petition Clause protect lobbying? Does lobbying even involve submitting a petition to the government?⁴⁷ Citizens United v. FEC (2010) observed in passing that “Congress has no power to ban lobbying itself.”⁴⁸ But the Court suggested that certain restrictions, such as requiring lobbyists to register with the government, were legal. Would more expansive restrictions like temporary lobbying bans pass constitutional muster?
• Does the Petition Clause impose a constitutional duty on executive agencies to accept or respond to petitions? As noted, the APA imposes a statutory obligation to accept petitions and respond to those that raise significant arguments.
• The Supreme Court has held that the Petition Clause does not protect a right to petition without risk of prosecution. Nor, the Court held, does it protect a right to receive a petition. Lower courts have questioned these holdings.⁴⁹ Are the Supreme Court’s precedents consistent with the historical tradition?
• Hague v. CIO (1939) incorporated the Petition Clause against the states, but the Court was unclear as to the precise basis for doing so.⁵⁰ Given the right’s deep historical roots, would the Privileges or Immunities Clause rather than the Due Process Clause be the better vehicle for applying the right to the states?

1. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 397 (2011). ↩︎
2. Id. at 395. ↩︎
3. William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 465–70 & n.3 (rev. 2d ed. 1914). ↩︎
4. Id. at 465–69. ↩︎
5. Id. at 476. ↩︎
6. 1 Blackstone 143. ↩︎
7. 4 Parliamentary History of England 432–33 (W. Cobbett ed. 1808). ↩︎
8. 1 Wm. & Mary, ch. 2. ↩︎
9. Maggie Blackhawk, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1144 (2016). ↩︎
10. Id. at 1144–45. ↩︎
11. Id. at 1144. ↩︎
12. The Massachusetts Body of Liberties of 1641, cl. 12. ↩︎
13. James E. Pfander, Sovereign Immunity and the Right to Petition, 91 Nw. U. L. Rev. 899, 935 n.127 (1997). ↩︎
14. A Decent Respect to the Opinions of Mankind: Congressional State Papers, 1774–1776, at 49, 55 (James H. Hutson ed., 1975). ↩︎
15. Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 749 (1999). ↩︎
16. Id. ↩︎
17. Declaration of Independence, ¶ 30. ↩︎
18. Del. Decl. of Rts. of 1776, § 9; Md. Const. of 1776, § 11; Mass. Const. of 1780, pt. I, art. XIX; N.H. Const. of 1783, pt. I, art. XXXII; N.Y. Bill of Rights of 1787, § 10; N.C. Decl. of Rts. of 1776, § XVIII; Penn. Const. of 1776, ch. 1, § XVI; Vt. Const. of 1777, § 18. ↩︎
19. Stephen A. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 146 (1986); Duryea, 564 U.S. at 394. ↩︎
20. Articles of Confederation, art. IX, § 2. ↩︎
21. Storing 2.7.54. ↩︎
22. Id. at 2.7.55. ↩︎
23. Id. at 2.8.86. ↩︎
24. Neil H. Cogan The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 3.1.2.6. ↩︎
25. 1 Annals of Cong. 451 (1789). ↩︎
26. Id. at 759. ↩︎
27. 2 Cong. Register 197 (Aug. 15, 1789). ↩︎
28. Id. at 198. ↩︎
29. S. Jour., 1st Cong., 1st Sess. 117 (Sept. 3, 1789). ↩︎
30. Id. at 118. ↩︎
31. 1 Annals of Cong. 766 (1789). ↩︎
32. Blackhawk, supra at 1136. ↩︎
33. 1 Annals of Cong. 710 (1789). ↩︎
34. H.R. Jour., 24th Cong., 1st Sess. 1409 (May 26, 1836). ↩︎
35. Cong. Globe, 26th Cong., 1st Sess. 150 (1840). ↩︎
36. H.R. Jour., 28th Cong., 2d Sess. 10 (Dec. 3, 1844). ↩︎
37. Duryea, 564 U.S. at 393. ↩︎
38. Smith v. Ark. State Highway Emp., Loc. 1315, 441 U.S. 463, 465 (1979). ↩︎
39. Duryea, 564 U.S. at 387. ↩︎
40. Id. at 399 (Thomas, J., concurring); id. at 403–04 (Scalia, J., concurring in part and dissenting in part). ↩︎
41. Rule XII, cl. 3, Rules of the House of Representatives (Jan. 10, 2023). ↩︎
42. Higginson, supra at 143 n.2. ↩︎
43. Duryea, 564 U.S. at 387–88. ↩︎
44. 530 U.S. 640, 678 (2000). ↩︎
45. 5 U.S.C. § 553(e). ↩︎
46. 5 U.S.C. § 553(b)–(c). ↩︎
47. Blackhawk, supra at 1132. ↩︎
48. 558 U.S. 310, 369 (2010). ↩︎
49. We the People Found., Inc. v. United States, 485 F.3d 140, 144 (D.C. Cir. 2007); id. at 145–49 (Rogers, J., concurring). ↩︎
50. Hague v. Comm. for Indus. Org., 307 U.S. 496, 513 (1939); id. at 519–21 (Stone, J., concurring); id. at 532 (Hughes, C.J., concurring). ↩︎