It Is Dangerous to Be Right When the Government Is Wrong Read online

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  Chapter 9

  You’ll Hear from Me:

  The Right to Petition the Government for Redress of Grievances

  In 2002, the non-profit organization We the People Foundation for Constitutional Education petitioned the government to answer for violating the following provisions of the Constitution: The War Powers Clause with the undeclared Iraq War, the money clauses with the Federal Reserve System, the right to privacy with the Patriot Act, and the tax clauses by levying a direct, un-apportioned tax on labor. After having those petitions ignored, We the People, including 1,450 individuals, commenced a lawsuit against the United States government seeking to enforce their constitutional right to petition, and to compel the government’s corresponding duty to respond. They argued that if the government failed to respond to petitions, then the people of the United States had a right to sanction the government, namely, in the form of withholding taxes. They thus adopted the mantra “No Answers, No Taxes,” citing in part the following excerpt from the Journals of the Continental Congress: “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.”

  A federal district court judge dismissed We the People v. United States. The court pointed to two inapposite Supreme Court cases as support. Specifically, the district court reasoned that if employment-related petitions made by government employees did not trigger a duty to respond, neither did petitions made by United States citizens for the enforcement of constitutional rights. The U.S. Court of Appeals for the Second Circuit in New York affirmed, and the Supreme Court declined to hear the case. To further silence the petitioning activities of organizations such as We the People, the Congress amended the Tax Relief and Health Care Act of 2006 to provide for five-thousand-dollar fines for anyone who submitted a so-called “specified frivolous submission” to the IRS. Among a host of others, frivolous submissions included arguments that “a taxpayer may withhold payment of taxes or the filing of a tax return until the [IRS] or other government entity responds to a First Amendment petition for redress of grievances.” Thus, the government not only took the stance that it was not bound by the Constitution, but that individuals could be punished harshly for attempting to exercise their constitutional right to hold the government accountable for its illegal conduct.

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  Why is it that a government can transgress our natural rights, and then so easily avoid responsibility when organizations such as We the People attempt to hold the government responsible? Isn’t there a fundamental human yearning to right those wrongs which have been committed against us, regardless of whether the transgressor was an individual or a government, American or foreign? As we shall see, the right to petition the government for redress of grievances guarantees individuals a liberty to demand that legislatures take a particular action, and to sue the government when it breaks the law. For centuries, this has been one of the most jealously guarded rights in the Anglo-American legal systems. Moreover, implicit in this right is the self-evident truth that government is the servant of the people, and not the other way around. Understanding the crucial role that the right to petition plays in free governments, our Founders enshrined it in the Constitution so that future generations might enjoy the blessings of liberty.

  Nonetheless, growing weary of receiving complaints regarding slavery during the antebellum era, the federal government took the position that it had no duty to respond to or even read petitions. Moreover, the government has enacted rules which allow for sanctions against parties bringing so-called frivolous lawsuits. All of these rules and doctrines have swept away those components of the right which history has taught us is necessary for liberty, and in so doing eviscerated one of our constitutionally mandated protections from government interference. As in all of these chapters, we shall see that the culprit has been a push for larger government and unconstitutional legislation. Only when our rights, especially the right to petition, have been cut down, can government gain complete control of our lives and fully sate its thirst for power.

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  The Right of the People over Their Government

  The right to petition the government for redress of grievances is one of the oldest and most well-established rights in our legal history, leading the prominent lawyer Norman B. Smith to call it in 1986 “the cornerstone of the Anglo-American constitutional system[s].” The development of the right to petition paralleled an increasingly stable government in medieval England. Rather than use warfare and coercion to effectuate political change, barons were able to petition the King peacefully to redress their grievances. In fact, petitions became an early form of legislation, as laws would typically be submitted by Parliament to the King in the form of petitions to adopt a particular policy. Moreover, the political stability offered in part by the right to petition was an essential component in the development of the modern state as we now know it. As historian Joseph R. Strayer, who taught me history when I was an undergraduate, once noted,

  In any political unit where there was some stability and continuity, one could expect that there would be efforts to create judicial institutions which would improve internal security and financial institutions which would provide the revenues necessary for defense against an external enemy.1

  Such institutions are indeed the proper role of government and were particularly necessary amidst the violence of the Middle Ages.

  The alternative to the right to petition was a violent regime change. When grievances go unanswered, history demonstrates that the aggrieved will inevitably seek to overthrow those in power. The English were acutely aware of the role that the right played in maintaining a healthy political system: “To traduce such petitioning [is] a violation of [royal] duty, and to represent it to his majesty as tumultuous and seditious is to betray the liberty of the subject, and contribute to the design of subverting the ancient legal constitution of this kingdom, and introducing arbitrary power.”2 Many historians posit that Britain was able to avoid the bloody revolutions on the European continent in the eighteenth and nineteenth centuries because the right to petition secured for the people a participatory role in government. Thus, the stability of the political system was largely based upon the ability of the King’s subjects to request that certain actions be taken, and the corresponding expectation that the King would respond to those petitions and evenhandedly redress their grievances, and enhanced by the transparency that petitions necessarily brought about.

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  The right to petition was also essential to the development of popular sovereignty. This theory holds that, in the words of Benjamin Franklin, “the rulers are the servants and the people their superiors and sovereigns.” The right to petition furthers popular sovereignty by making the government accountable to the people for all of its wrongs and misguided policies; petitions are not mere prayers or requests, but demands made by the masters (the people) to their servants (the government). If, however, the people were the servants of the government, then the government’s interests would always be superior to those of the people, and it would be oxymoronic to demand that the government redress its violations of the people’s natural rights. President John Quincy Adams succinctly stated the role that the right to petition plays in our political system: “The right of petition . . . is essential to the very existence of government; it is the right of the people over the Government; it is their right, and they may not be deprived of it.” Thus if we lose the ability to petition the government, we also lose our right to demand that the government protect our freedoms instead of merely enhancing its own power.

  One of the most essential features of the right was that the people remain immune from punishment for petitions made to the government. The most important event in securing this component of the right was the famous Seven Bishops Case. During the seventeenth century, the English Parliament seriously curtailed the rights of Catholics to participate in government. As
a response, in 1687 the Catholic monarch King James II issued his Declaration of Indulgence which negated those restrictions, and later demanded that the Declaration be read aloud during Protestant church services. The predominantly Protestant English citizenry nonetheless perceived this action as an encroachment upon the sovereignty of Parliament and an initial attempt to re-establish Catholicism as the state religion. Believing the command to be an illegal exercise of authority, a number of senior Anglican bishops, including the Archbishop of Canterbury, petitioned the King, requesting that they be exempt from the duty to read the Declaration. This nationally published request outraged King James, who responded by charging them with the crime of seditious libel, “written or spoken words . . . that tend to . . . embarrass, challenge, or question the government.”3 Doesn’t this sound eerily like the Alien and Sedition Acts of 1798 and the Espionage Act of 1917? History repeating, again.

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  The public was enraged by the arrests, appearing in droves to support the bishops as they were brought to the Tower of London. When ordered to enforce the Declaration, almost all soldiers in the army refused to do so. William III of Orange, who sought to replace James II, captured the significance of the case: “[King James’s] evil counselors have endeavored to make all men to apprehend the loss of their lives, liberties, honors and estates, if they should go about to preserve themselves from . . . oppression by petitions, representations, or other means authorized by law.”4 If petitioners could be punished for making a humble request that the government do something differently, then the people would no longer be free to seek justice, and the right would be eviscerated. What could be a more fundamental human yearning than freely and uninhibitedly to right wrongs which have been committed against oneself ? Consequently, the primary defense raised was not that the bishops were innocent, but that statements made as petitions could not be a valid basis for prosecution, even if they were genuinely seditious. As we have seen, it is dangerous to be right when the government is wrong.

  Although the bishops were later acquitted, the real significance of the case was in prompting the adoption of the English Declaration of Rights. Seeking to prevent further transgressions of the right, the drafters of the Declaration enshrined the “right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.” Thus, it is clear from both the broad text of the Declaration and its history that its drafters were acutely aware of the effects that penalties could have on the right of the people to petition, and consequently sought to outlaw them forever.

  The right to petition the government not only traveled to, but flourished in colonial America. In fact, it was deemed so essential a right that it was one of the few which were guaranteed to those traditionally disenfranchised members of society: Women, Indians, and even slaves. As one scholar notes, the right to petition therefore “vested these groups with a minimum form of citizenship: petitioning meant that no group in colonial society was entirely without political power.”5 Moreover, it was the right to petition the government from which other First Amendment rights, such as speech and assembly, are made more effective: If the right to petition was to be truly absolute, then the people compiling those petitions needed to be able to assemble, and speak freely. In sum, the right to petition the government can be considered a foundational right in our legal system; it is the right by which most other rights are enforced. After all, the Constitution cannot defend itself; its provisions will only ever take effect through the constant vigilance of those who wish to remain free.

  One of the essential features of the right in the American colonies was that it imposed a correlative duty on the part of the government to hear those petitions and give them due regard. It is telling to note how legislatures dealt with an increasingly large number of petitions: “Whereas conditions of admissibility, such as amounts in controversy [i.e., a fee for submitting a petition], were manipulated to ease the pressure of petitions, the judicial guarantee of full consideration for those petitions still heard remained inviolate.”6 For example, a Connecticut Assembly provision passed in 1769, which abolished the right to appear before it, was shortly thereafter repealed as being contrary to fundamental individual rights (i.e., the Natural Law). Moreover, one of the principal reasons that America declared its independence was the British government’s refusal to hear petitions from the colonies. It is only when we examine this history that we can begin to appreciate our Founders’ belief that the right is “essential to the very existence of government.” It should therefore come as no surprise then that they, and their predecessors, associated subversion of the right with tyranny and oppression.

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  More fundamentally, it should be clear that the right is useless if the government has no obligation to consider petitions; without it, the petitions might as well go straight into the waste basket, along with any hope of the people to seek a redress of their grievances. In essence, the duty of government to give petitions due consideration gives the right its meaning. A right to petition without any consideration of that petition is nothing more than a mere pretense of government accountability to the people.

  When the Founders incorporated the right to petition into the Constitution, they also enshrined all of its essential protections, namely, the proscription of penalties for petitioning and the duty of the government to respond. They were thoroughly educated in its history and political theory, and the inevitable consequence of an out-of-touch government which results when the right is transgressed. By incorporating this right into the Constitution, the Founders could ensure that the new federal government would not commit the same wrongs as the government from which they had declared independence fifteen years earlier. Moreover, they wished that no future generation would have to fight another war just to have their natural rights enforced. Why would they ignore these lessons and grant to we the people far fewer freedoms than were guaranteed to their English counterparts and colonial ancestors? To suggest otherwise is to suggest that the Constitution was a radical shift away from a rich tradition of liberty and individual rights. Nothing could be further from the truth.

  Judicial versus Legislative Petitions

  It is important to note that there are two kinds of petitions, both of which serve different interests. The first is the traditional legislative petition, which typically comes in the form of a letter sent to one’s representatives. The second is the judicial petition, which is essentially a lawsuit against the government. We will explore both, and the important role they have played in securing individual liberty.

  In early English legal history, common law courts lacked the power to compel the government to take an action. Thus if the people wished to take up a grievance with the King or Parliament, they would have to “petition” them directly with a request for a redress of grievances. The petitions themselves were actually received by the chancellor—a sort of chief operating officer of the government and chief justice of its courts—who was appointed by the King, with the consent of Parliament. My hero, St. Thomas More, once held this position.

  If these petitions demanded the adoption of a different policy, they took the form of what we now know as legislative petitions. The legislative petition served the crucial function of ensuring government accountability to the people: “The people used this newfound right to question the legality of the government’s actions, to present their views on controversial matters, and to demand that the government, as the servant of the people, be responsive to the popular will.”7 The formal petitions which activists draft and gather signatures for today are the descendants of these early petitions made to the King.

  However, some of these claims were based not on a mere request that government do something differently, but that the government had violated an established legal right. Imagine the difference between petitioning the government to build a road around Boston instead of New York, and petitioning the government to release you from unlawful imprisonment; in the latter cas
e, you actually have a legal right to be free from that kind of action, whether perpetrated by an individual or a government (in the Boston Road Case, you do not have a legal right); if that right is transgressed, then you are able to sue the offending party in court for a remedy.

  If the King found that the claim against him was legitimate, then he authorized courts to hear the claim, with the attorney general representing him as a party. These are the antecedents of what we now know as judicial petitions; lawsuits against the government, heard and decided in a court of law. Gradually, the requirement of formal consent withered away, and the King lost the right to say when and if the government could be sued by virtue of judicial doctrine (the King himself would never have voluntarily agreed to such a large-scale waiver of immunity). Thus, historically the government and its officials were not above the law, but held accountable to it. In addition to accountability to the people, judicial petitions have the essential benefit of ensuring that disputes between individuals and the government are resolved by a neutral arbiter. As James Madison proclaimed in Federalist No. 10, “No man is allowed to be a judge in his own cause.” Every child knows what happens when you get to cut the pie and choose the first piece. Eventually, the King lost that right.

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  Judicial petitions became especially important in early America because, as James Madison suggested in the statement above, individuals distrusted legislatures and favored the neutrality offered by an independent judiciary. In fact, the need for courts unbiased in the government’s favor was one of the primary reasons for the creation of the judiciary as a separate branch of government: The Founders recognized the danger of the government being a judge in its own cause. The Chief Justice of the Virginia Court of Appeals once summarized the proper role for courts: