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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