A Brief History of the First Amendment Right to Petition Government

by Kathy Goldschmidt on February 25, 2022

 Imagine rebuilding Congress' interactions with the American people in ways that:

  • Embrace and facilitate First Amendment rights;
  • Support and enhance Congress' Article I role in our democracy;
  • Inform the legislative process without overwhelming Congress with volume;
  • Prioritize substance over quantity;
  • Increase the visibility, transparency, and accountability of advocacy; and
  • Allow for different channels of communication, with clear purpose and instructions for each.

Congress can build such a system. In fact, it had a robust system that accomplished most of these things during its early years. It was the process guaranteed by the First Amendment right to petition government for a redress of grievances, and managing it was originally Congress' primary activity. The petition laid the foundation for seminal legislation such as the abolition of slavery and the granting of women's suffrage. It is also part of the reason Congress has committees and the reason many government entities, including the Patent and Trademark Office, Bureau of Pensions, Board of Patents, and Interstate Commerce Commission exist.

In CMF’s report The Future of Citizen Engagement: Rebuilding the Democratic Dialogue, we discuss the current challenges to substantive engagement between Congress and the People and propose principles that should drive the relationship in the future. One of them is that Congress should robustly embrace and facilitate the People’s First Amendment rights. In a box along with that principle, we provided a brief, but fascinating, history of how Congress facilitated the right to petition, which we wanted to highlight and expand upon.

The First Amendment right to petition the Government for a redress of grievances is now so little understood that, in a 2011 opinion, the Supreme Court indicated that "Some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty." In other words, the Court wanted to know why it was included along with, but distinct from, the better-understood freedoms of religion, speech, press, and assembly. In response, legal scholar Dr. Maggie Blackhawk, political scientist Dr. Daniel Carpenter, and their collaborators began to study the history of the right to petition and learned that Congress facilitated it very differently in the past than it does now.

In England—the common law from which American law is derived—the petition was well-understood as far back as the Magna Carta, and versions of it can be traced to well before that in many cultures. In fact, the failure of petitions to Parliament was described in the U.S. Declaration of Independence as the key reason for cutting ties with England: "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. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."

The petition was the means for individuals to raise issues and have them considered by government. Though not included in the U.S. Constitution, it was deemed necessary to include in the First Amendment alongside other fundamental rights. From the beginning, Congress spent a great deal of time defending and facilitating the right to petition, and treated it more akin to due process than free speech. The key features of this right in the House of Representatives, to which the bulk of petitions were addressed, were:

  • They were based on merit. Any Member could introduce and advocate for any petition. They did not have to represent the petitioner. If a petitioner could not identify a Member to submit the petition, it would be ignored.
  • There were clear rules petitioners had to follow. Petitions had to be written in a specific way, more like court filings than modern messages to Congress. If the petitioner failed to follow the rules, the petition would be considered "informational" or ignored.
  • The petition, process for consideration, and outcome were transparent. Petitions were read into the Congressional Record and then either referred to a committee, cabinet member, or court or tabled for no further consideration. Each was tracked by the Clerk of the House in a public docket through to its resolution and response.
  • The number and influence of the signatories did not matter. Whether a petition had a single signatory or thousands, they were all treated the same. Even back to the first congress, petitions from women, free Black people, enslaved people, Native Americans, foreigners, and children were considered alongside those of enfranchised white men. Abolition of slavery and women's suffrage petitions were considered in Congress—and contributed to the debate—long before slavery was outlawed or women were given the right to vote. Petitions provided means for individuals, including unenfranchised people and minority voices, to have their concerns heard by Congress.
  • Congress delegated some categories of petitions. The original purpose of committees was to consider petitions, but frequently over the years issues emerged that threatened to overwhelm congressional capacity to consider the high volume of petitions. In the very early days, these included petitions about pensions for Revolutionary and Civil War veterans, patents, claims against the government, and interstate commerce. To handle the volume of petitions and provide them all with due process and consideration, Congress created entities to delegate them to, such as the Bureau of Pensions, Board of Patents, Court of Claims, and Interstate Commerce Commission.

It is unclear when the right to petition evolved from the formal, transparent, court-like filings and procedures of early congresses into the informal and opaque grassroots advocacy and professional lobbying practices we use today. The Senate and House of Representatives still receive and process formal petitions, and on most days a few appear in the Congressional Record along with a notation of which committee to which they were referred. They are merely vestigial versions of original petitions, however. They no longer require action or resolution, and they are no longer tracked and reported through to resolution and response in a public docket. There is no longer a culture or mandate for due process or transparency of those petitions. Sadly, few in Congress even know what they are or that they exist at all. And messages from constituents are treated as free speech, to be taken up or ignored at will according to the priorities, interests, and politics of an individual rather than the chamber, as a whole.

The New Zealand House of Representatives offers a helpful example of what the petition, as it was facilitated in early America, might look like in modern practice. Commonwealth country parliaments still process petitions much the way Congress used to, but the New Zealand House offers the clearest and most user-friendly example online.

  • There are a variety of ways to engage with the House, including by submitting a petition. The "Have Your Say" link at the New Zealand Parliament website offers options for being heard by the chamber, including contacting a Member of Parliament (MP), starting a petition, making a submission in response to a committee's request for public comment, complaining about existing regulations, seeking a referendum, voting, and becoming an MP. They do not eliminate channels, but guide people to the appropriate channels for their concern.
  • Clear instructions are provided for each. For petitioning, the New Zealand House provides information about what it is for and who can submit one, as well as a guide (with a helpful video) on how to do it and what will happen. There are also clear rules and standards that apply to the submissions.
  • The process and resolution are public and accessible. All petitions (even those submitted on paper) are included in the online tracking tool, where people can add their signatures and see the status of each. There is a period during which signatures can be added, then the petition is closed. Any MP can present any petition to the House, and only those presented to the House by an MP are considered, no matter how many signatures it receives. Once presented, it is referred to the Petitions Committee to manage. The committee considers the petition and produces a report making its recommendation for the next step. The reports appear generally to be short (5-10 pages), and they read like many Members' of Congress responses to constituent mail, but they include a response or recommendation at the end.

What would it take to revive Congress' role in the right to petition government for a redress of grievances? We suspect that it could be as simple as rules changes to revert to historical practice, but it may require investigation and modernization of the Administrative Procedures Act and the Legislative Reorganization Act. It may also require research and litigation to clarify the right to petition and help us understand and practice it as clearly as we understand and practice our other First Amendment rights. In any case, it will definitely require significant culture changes to shift the practices and mindsets in Congress and among the People.

In our 2021 report The Future of Citizen Engagement: Rebuilding the Democratic Dialogue, we propose ten principles for modernizing and improving the relationship between Congress and the People. All ten will require changes in the constituent engagement culture and practices in both Congress and the organizations that help facilitate grassroots advocacy. We are posting a blog series outlining each of the principles and featuring accompanying resources, articles, and plans to support it. This information is in support of Principle 2: Congress should robustly embrace and facilitate the People's First Amendment Rights.

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citizen engagement, congressional operations