Restoring the right to petition

The Petition Clause of the First Amendment provides that Congress shall make no law abridging the right of the people to "petition the government for a redress of grievances." In a recent article, Downsizing the Right to Petition,1 Professor Gary Lawson and Mr. Guy Seidman argue that the Clause simply restates the established right of individuals to communicate their views to the government. As part of this minimalist interpretation of the Clause, Lawson and Seidman take particular issue with my claim that the framers understood the right to petition the courts for redress as reaffirming the judicial role in determining claims against the government and as rejecting sovereign immunity.2 My claim appeared in Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government.3 Although they do not dispute my methodology or my evidence, Lawson and Seidman nonetheless argue, essentially on logical grounds, that Sovereign Immunity fails to make its case that the Petition Clause trumps the jurisdiction-withdrawing function of the doctrine of sovereign immunity. In this brief reply, I contend that Downsizing fails to come to grips with my revisionist claim that the Petition Clause should be read to reject the doctrine of sovereign immunity. I first sketch the early stages of the argument that Lawson and Seidman make in Downsizing, much of which appears to agree with the conclusions I drew in Sovereign Immunity. Then I take up the specific terms of the argument that Lawson and Seidman advance against my thesis. I conclude that notwithstanding whatever force Downsizing may have as a restatement of the current law of sovereign immunity, it does little to rebut my claims respecting the framers' historic commitment to government accountability. I. LAWSON AND SEIDMAN'S PRINCIPAL CLAIMS Its early sections suggest that Downsizing seeks to develop an understanding of the Bill of Rights as declaratory of existing rights.4 In keeping with this project, Downsizing characterizes the right to petition as one grounded in the framers' conception of republican government and as previously incorporated into the requirement of propriety that limits Congress's power to pass legislation under the Necessary and Proper Clause.5 The First Amendment, on this account, simply restates more emphatically the limits on the powers of the federal government that already applied via the Constitution itself. Like other provisions of the First Amendment and the Bill of Rights, then, the Petition Clause simply acts as an "exclamation point" to ensure that readers properly attend to the limits on federal power.6 Downsizing then offers a mercifully abbreviated tour of the history of petitioning and draws a series of fairly reasonable conclusions about its implications for the framing.7 First, Downsizing acknowledges that the right to petition evolved over several hundred years, and that in feudal England it meant something quite different from what it came to mean to the framers of the Constitution.8 Second, Downsizing reiterates a point I made in Sovereign Immunity: that prior to the Constitutional era, Parliament and colonial North American assemblies often entertained petitions for redress of grievances that we would today regard as seeking relief of a judicial nature.9 Third, Downsizing concludes (as I did) from this intermingling of legislative and judicial petitions that one must pay special attention to the doctrine of separation of powers to determine what the right to petition meant to the framers of the American constitution.10 After all, as I noted, the Constitution creates a "government" with three departments and vests the departments with distinctive powers.11 Petitions thus invoke the specific powers of particular departments, and one need not assume that the right to petition will mean the same thing as applied to the different functions of government. Having laid this foundation, Downsizing takes up the role of the Petition Clause in the three departments of the federal government. …