Whatever happened to the right to petition?

Maggie Blackhawk of the Law School discusses the First Amendment’s right to petition, how the right was exercised historically, what it looks like in its current form, and why it changed.

The First Amendment on display in front of Independence Hall in Philadelphia.

Alongside freedom of religion, freedom of speech, freedom of the press, and the right to peaceably assemble, the First Amendment of the U.S. Constitution guarantees the lesser known right to “petition the Government for a redress of grievances.”

Unrepresented and disenfranchised under British rule, the framers of the Constitution included the right to petition in the Bill of Rights in order to give to underrepresented, unenfranchised, and politically powerless persons and minorities (except enslaved Africans) public access to lawmaking and an avenue for political participation distinct from the vote. Aggrieved individuals could file a petition with their senator or representative, who would then introduce it in Congress, where it would be read on the floor, entered into the Congressional Record, and either be tabled or taken up for further consideration.

The First Congress of 1789-91 received 621 petitions. The era from the Civil War until World War I saw the highest per capita petition volume, peaking with 16,206 petitions in the 52nd Congress of 1891-93. At present, the number of petitions submitted to Congress is almost nil.

Maggie Blackhawk, an assistant professor at University of Pennsylvania Carey Law School, has been researching petitions and the Petition Clause since 2013, stirred by her interest in how petitioning served as a broader form of representation for the unenfranchised.

Maggie Blackhawk, an assistant professor of law at the Law School.

“It was a complement to the vote, a supplement to rather something lesser than or a substitute—that is, where we aim for the vote and get rid of the petition,” she says. “[Petitions] were a complementary means of getting represented in government.”

In the process of conducting her research, Blackhawk says she was stifled by the dearth of research on what petitioning looked like over the course of U.S. history—particularly how petitioning transpired within Congress—partly because hundreds of thousands of petitions submitted to Congress had never been fully documented.

“Many of them are just scraps of paper sitting in the National Archives, and they haven’t been looked at in the aggregate,” she says. “Very few people are able to study thousands and thousands of documents at once.”

Blackhawk, co-principal investigator Dan Carpenter of Harvard, and their research team created the Congressional Petitions Database to rectify this problem. The first comprehensive database of petitions submitted to Congress, it contains more than 500,000 petitions submitted from the founding of the United States in 1776 to 2013. It is now available for public use.

Penn Today spoke with Blackhawk about the right to petition, how it was practiced, why it is largely unknown, how and why it changed, and if those changes are constitutional.

Why is the right to petition lesser known than the other rights in the First Amendment?

I think because the petition process is an institution within our government that has been forgotten, at least in its historical form, which looked a lot more like litigation in court within the Congress. You were able to show up with a petition and you would definitely receive review of that petition. You might receive an investigation, a hearing. And you would definitely receive a response one way or the other, either to accept it, decline it, table it, and it went into the formal record of the Congress. If you contrast that to what we think of as its modern equivalent—the current lobbying system—there’s no real equivalence between the two.

You can show up in Congress, but it’s possible that no one will respond. It’s possible that no one will see you. It’s possible, or even likely, that there would be no record of your interactions with the Congress in the formal record. It’s actually unlikely that you’re going to get a response, or a hearing, or an investigation, or any kind of formal process on your request from the Congress. Whereas historically, for about 150 years, you were able to have formal process in the Congress that was similar to the responsiveness of a court. You were afforded, essentially, due process in the Congress in a way that you do not receive today. Because the petition process has fallen into disrepair in Congress, and because its historical operation has not been well-studied, we have completely forgotten the meaning and values behind the Petition Clause in our Constitution.

Historically, what types of things did people petition the government for?

Anything. It had to be within the jurisdiction of the Congress, so it had to be part of a federal question, but they could actually expand the jurisdiction of the Congress by petitioning for something and making it a part of what Congress could do.

Who filed petitions? Were women and people of color able to file petitions?

Everyone did. Children, the foreign born. African Americans. Native Americans. Women. I have an example in my 2018 article in the Yale Law Journal of a group of free African Americans in Philadelphia [Rev. Absalom Jones and 70 others] petitioning for regulation of the slave trade successfully in the 18th century. They petitioned Congress and said, ‘We want greater regulation of the international slave trade, and we’re petitioning as a class on behalf of other citizens similarly situated,’ and the Congress passed a law shortly thereafter increasing regulation of the slave trade. And tribal governments petitioned to bring the federal government into disputes with the states and to uphold treaty obligations. It was widely available and often successful for the politically powerless to petition.

Why was there a change? Why doesn’t petitioning operate today the way it did in the past?

Over time, the Congress built out parts of the administrative state, and also relied on the federal courts, in order to resolve petitions coming into the Congress. To deal with volume of petitions coming into the Congress, and continue to afford those petitions the process that they deserved, the Congress essentially offloaded those petitions into administrative agencies, commissions, and boards, and into the federal courts.

So now, if you want to petition the government, you do it through the court system instead of directly with your senator or representative?

You would largely go to the administrative agencies. But the proper forum for your petition depends on the subject matter of what you’re trying to resolve. If you have a tort suit against the government, the Federal Tort Claims Act, which was part of these statutes in the 1940s that restructured the petition process, now gives jurisdiction to the federal courts. Before 1946, you filed a petition in Congress to receive redress of that tort, and then following that date, you would file it in federal court. With the Federal Tort Claims Act, they shifted jurisdiction explicitly from the Congress and from a petition system to the federal courts.

How did people in the 1940s respond to these changes? It seems like the original petition process was much more direct and immediate, if you could just go directly to Congress and not through the court.

It does seem to be more direct. It also seems to be more open and more creative. It allows for more innovation to be able to just go to the Congress and say, ‘This is my grievance; please redress it,’ rather than having to go to an institution that deals with some narrow subject matter. What if you had a new right or even a new grievance, something that needs to be resolved that’s a modern problem and there hasn’t yet been an administrative agency or an explicit jurisdiction given to the court? To not be able to go to Congress means that petitions are best suited for longstanding problems and not newly emergent ones. For example, defunding the police is only going to be something that we’re going to deal with in an era where police are well-funded or potentially overfunded, and that’s not going to be the case in the 1850s. Being able to deal with new issues in the world through the petition process means that you need a neutral platform that will accept any form of request. Now, if you have a petition for a pension, you go to the Bureau of Pensions. If you have a petition dealing with environment, you can petition the Environmental Protection Agency. But to answer your question about the response in the 1940s to restructuring the petition process, there wasn’t a big outcry at the time.

Why do you think that is?

I don’t have a clear answer to that question yet, but I suspect it’s because the process was incremental over so many decades that, in fact, the more robust form of the petition process that you saw in the 19th century just faded from American democratic practice and memory by that time, so it just didn’t prompt the same amount of outcry. But also, frankly, there isn’t as much outcry over structural issues than substantive issues when we come to democracy and democracy reform, so you don’t have people out there hitting the streets for campaign finance reform en masse. Instead, you have protest and outcry focused on concerns that are closer to people’s everyday lives: police violence, inequality, and other forms of substantive injustice. You just don’t see the same sorts of outcry over process and structural injustice.

There are a lot of petitions floating around these days, especially online petitions. Are these petitions a form of petitioning the government, or more just for show?

There’s a huge mismatch between what we see as petitioning today and what petitioning was historically. The petitions that you sign today are usually ways to sign up for a mailing list where your email address goes off to some nonprofit and then they send you emails after that. However, those petitions may not make it to Congress at all. They may be presented as some form of political theater, but they’re not formally filed with the Congress, they are not read into the Congressional Record, they are not reviewed by members of Congress in committees. You are generally not afforded a hearing or any sort of investigating, and it’s unlikely that the petition will receive a response. Because the Congress no longer affords the process that it afforded at the founding and for about 150 years following to all those petitions, they end up being a lot more empty letters these days than they are meaningful legal documents. They were much more meaningful legal documents historically. And so ‘petitioning,’ as we practice it today, is essentially a toothless democratic practice.

The changes Congress made to the petitioning process seem to have diluted the right to petition. Was this constitutional or is that something that would have to be challenged and figured out by the Supreme Court?

It has not been litigated. It’s an interesting question. The 2016 article I wrote in the Stanford Law Review began to address this question. The answer to whether something violates the Constitution depends on how you ask the question and what methodology you rely on. But it is reasonable to conclude that foreclosing the ability to petition, or essentially shutting down the petition process entirely within the Congress to where people can’t really petition in the same way that they could for much of this nation’s history, means that Congress is not upholding the values in the First Amendment’s right to petition.

By closing itself to petitions and shutting down that formal process, Congress has instead supported and sustained a lobbying system that is a gray market economy for access. There is no real regulation of how our lobbying system works. Our current system—the lobbying system that Congress holds out as the modern version of our petition process—is not transparent, it’s opaque, and it’s not formalized. It’s not like there are any rules or procedures to how lobbyists engage with the Congress. Because our current lobbying system stands in stark contrast to the historical petition process, I concluded in that 2016 article that Congress would violate the right to petition and fail to uphold those Petition Clause values by not reforming our current lobbying system and offering the public a more formal, public, and equal means of access.