It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [86]
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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