It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [91]
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The annihilation of the duty to respond has a particularly unsavory history. When the abolitionist movement gained momentum during the antebellum era, activists began petitioning Congress in droves. In essence, abolitionists rightfully saw slavery as oppression and tyranny in their most extreme form, and thus felt a need to petition the government to redress this grievance. One abolitionist stated that “the District of Columbia fastens on the whole nation the guilt of slaveholding. . . . And I hold it the duty of every man in the free States . . . by solemn remonstrance to Congress, to purge his conscience of the nation’s crime.”10 What could be a more righteous application of the right to petition than a demand that human bondage, the ultimate crime, be forever abolished? The right to petition was intended to provide a means for making right those wrongs committed by government, and thus, the abolitionists’ petitions to the federal government were as proper an exercise of that right as any in the annals of history.
Congress, however, ultimately passed a “gag rule” in 1840 which barred the reception of petitions “praying the abolition of slavery.” Slave states argued that the government could refuse to hear such petitions, because official government behavior was higher than and of a different order from the wishes of the people themselves. Stephen Higginson, professor of law at Loyola University New Orleans, notes,
[John Calhoun contended that] assemblies would be little more than “passive receptacles” were petitioners’ rights held superior to legislative necessities. Thus, Calhoun supported a sharp demarcation between citizenry and legislators. The right of the former to assemble and communicate opinions to the government ceased upon presentation of a petition; thereafter, the legislative domain was absolute and the assembly had full discretion to interpret and devise its own rules.11
Thus, the argument against a duty to respond was an explicit rejection of popular sovereignty and the notion that the government should ultimately be answerable to the people as their servant.
For reasons discussed earlier, we may start with the assumption that the right to petition mandates a governmental duty to respond to those petitions. Without that guarantee, the right would be meaningless, and we could only hope that government was desirous of listening to our protestations.
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Robert Schulz is a tireless defender of constitutional freedom. As the founder of We the People, he articulated, “The very philosophical premise of the Sovereignty of humans over the governments they create to serve them requires a corollary obligation in the Law to respond, and respond responsively.” Constitutional rights have never been so tenuous as to rest on a mere hope that the government will choose to hold itself accountable to the people. Therefore, to read out the duty to respond from the Constitution is to read out the right to petition.
Although some may argue that the right is not suitable to current times, this violates a fundamental principle of constitutional interpretation: Chief Justice John Marshall once pronounced, “It cannot be presumed that any clause in the constitution is intended to be without effect.” Thus, every word of every clause must be treated as law. The only process for altering the Constitution is by amendment. If slave states, and the generations of large government proponents after them, wished to do away with the duty to respond to petitions, then they were free to propose an amendment to that end. It should, however, not be surprising that such a proposal has not occurred: As history shows, time and time