Reviewing the history and origin of the First Amendment’s protections of speech, the press, assembly, and petition, with a significant focus on George Mason’s Master Draft of the Bill of Rights, in order to argue that the Freedom of Assembly was meant as a political right tied to popular sovereignty and that the Freedom of Petition provided another “avenue[] for citizens to influence and control their legislators, aside from the crude tool of representative elections.”
Arguing that the Right to Petition does not “impose[] on Congress a general obligation to consider or respond in any fashion to petitions that it receives” and also neither “strengthens nor weakens the case against federal sovereign immunity.”
Arguing that access to file winning claims within a court’s jurisdiction are protected within the original meaning of the Petition Clause as supported by the history, text, and policies underlying the Clause.
James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899 (1997).
Reviewing the text, drafting history, and purposes of the Petition Clause, with a particular focus on James Madison, in order to argue that the Clause’s protections “encompass submissions not only to the Congress of the United States but also to the executive and judicial branches of the federal government” and therefore should be understood to “guarantee[] the right of individuals to pursue judicial remedies for government misconduct.”
Arguing that historically the right to petition “was a distinct right, superior to the other expressive rights” in the First Amendment and included “both individual and collective [rights] to present written requests to executive, legislative, or judicial authorities,” as well as a right to receive redress or a response through “quasi-judicial procedures, such as administrative review.”
Arguing that the Clause’s original meaning “included a governmental duty to consider petitioners’ grievances” but this meaning collapsed as “[a]ntebellum Congresses were hostile to abolitionists’ prayers and refused to respect petitioners’ right to legislative hearing.”
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