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By Root 682 0

again such proposals have always failed due to public backlash. Moreover, as history also shows, the government abdicates a duty to respond because it wishes to prevent the people from exercising their sovereignty over it. Thus, for courts to uphold Congress’s refusal to respond to petitions is to violate both the Constitution and popular opinion. Could there be a better example of judicial activism? After the Civil War, the Constitution was quite properly amended to prohibit slavery; but the right to petition was never restored.

Moreover, the arguments for annihilation of the duty to respond are simply illogical, and misconstrue the very purpose of a constitution. Critics of the obligation, like Justice Holmes, argue that the right is not practical; it hampers governmental exercises of authority. But let us examine exactly what is impractical about the duty to respond. It is impractical because it conflicts with a constitutional assurance of government accountability to the people. Our rights were enshrined in the Constitution so as to restrict which actions government can take. Government cannot then argue that the right to petition should be done away with because it is too, in a word, restrictive. Thus, the entire purpose of our rights is to make unconstitutional government actions “impractical.” Could a basketball player sensibly argue that he should be able to carry the ball because dribbling it is too restrictive? Why can the government?

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Nor are these mere abstract ruminations. As noted before, the right to petition ensures government accountability to the people. By eviscerating this right, government has been able to grow large and out of touch with the freedom of the electorate, not an unsurprising result given the political philosophy of John Calhoun discussed above. Anyone who feels disillusioned by the Iraq and Afghanistan Wars, health care reform, or government bailouts, can appreciate the purpose that the right to petition serves, and the hypocrisy of government’s claiming that it is impractical.

More fundamentally, to read out the right to petition because it is impractical does harm not only to that right, but also to our entire constitutional system of government. When we allow shifting attitudes about what is the proper size and scope of government to trump the Constitution, then the Constitution itself loses its entire meaning: It is no longer law. Justice John Marshall Harlan once said that “the Constitution is not a panacea for every blot on the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.” Thus, even if a large welfare state, which of necessity did not have the time or resources to hear all legislative petitions, was genuinely in the public’s best interest, it could not change the fact that it is unconstitutional, and thus illegitimate. To abolish the duty to respond does violence not just to the right to petition, but to our entire Constitution, and the notion that we are a nation of laws.

The very idea that the government can pick and choose which parts of the Constitution it will defend and leave other parts unenforced belies the self-evident truth that the Constitution—the entire Constitution—is the supreme law of the land.

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Rule 11 Motions

The final component of the right to petition, the proscription of penalties, has also come under attack since our founding. One such device used by the government to punish petitioners is what is known in federal civil procedure as a Rule 11 motion. The rule provides that

by presenting to the court a pleading . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.

If judicial petitions, even if made to the government, fail to satisfy this requirement,