How defenders of slavery mothballed a constitutional right

"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."

When it comes to complexity, The First Amendment is rivaled perhaps only by the 14th Amendment. There are voluminous bodies of law attached to a number of brief clauses; non-establishment of religion by law, free exercise of religion, free speech, freedom of the press, and the freedom of assembly. Any one of those clauses have been the subject of many important court rulings.

Then there is this odd clause at the very end - to petition the Government for a redress of grievances. It’s rarely discussed in legal treatises and there are precious few cases where the “Petition Clause” is at issue.

Why?

“Petitioning the government” may sound like formal language for any act of what we might call “lobbying” today. But petitioning was more than that.

From precolonial days until just before the U.S. Civil War, petitioning was a particular formal procedure that was commonly used by citizens and groups to make their wishes known, especially to legislative bodies, with the expectation that the request would be taken up on the agenda and considered on its merits. In other words, ordinary people introduced the equivalent of “bills” to be debated in legislatures and either passed in law or not. This is not the same as modern initiatives and referenda, which are subject to a public vote and pass or fail without legislative deliberation, although some states do allow for “initiatives to the legislature.” However, in the heyday of petitioning, a single individual could petition the legislature, and that individual’s request would be considered.

There is a provision in the Magna Carta for petitioning the Crown, albeit mediated through a council of barons. I can’t say much about a British petitioning tradition, but I do know that the practice was in full bore in the American colonies. In fact, petitioning was far and away the main source of colonial legislation! Each legislature had special committees to receive petitions and put them on the legislative agenda.

This practice is surely what the founders (James Madison in particular) had in mind when the Petition Clause was included in the First Amendment. And after the United States became a nation and colonies became states, petitioning continued – directed at Congress and state legislatures.

Then came a head-on collision between abolitionists and an astute, stubborn politician named John C. Calhoun.

In 1836, petitions to ban slavery in the District of Columbia were delivered to Congress. Senators in southern slave states, led by Calhoun, argued that to even HEAR the petitions – to merely receive them – was to accord them legitimacy they did not deserve. The southern senators succeed in passing a “gag” rule of procedure that foreclosed consideration of the petitions. The gag rule was rescinded only a few years later, but Congress has been free of petitions ever since.

Modern federal courts, on the rare occasions that the Petition Clause is raised, consider it to be little more than a right to sue the government, at best. The courts have rejected a citizens’ right to participate in government.

Meanwhile, the Petition Clause has never been repealed. It remains - dormant in practice, but legally in force. Does it have a place in modern American political life?

I do not suggest that petitioning be revived as it was originally practiced. Early legislatures took up petitions on matters that would now be more appropriate for the courts – land disputes, squabbles between individual parties, etc..

I do, however, see that the Petition Clause could be a basis for a Constitutional right of citizen participation. This extends beyond mere speech rights. It is a right to be heard and taken seriously – and then either accepted or rejected with reason given for the decision. Procedures that include citizens in the planning phases of policymaking could suffice as satisfying Petition Clause rights. Government bodies could have formal methods of receiving petitions that mirror the “comment” requirements of the Administrative Procedure Act. I don’t have all the answers to the nitty gritty details, but I believe that procedures could be established without being impossibly cumbersome. They might be cumbersome, but not impossibly so. Sometimes, we accept such things for a greater good.

At present, U.S. citizens have no right to have their government listen to them. I believe the drafters of the Constitution intended us to have such a right.

After almost 175 years, let’s bring the slaveholders’ victory to an end and bring the Petition Clause back to life!