It Is Dangerous to Be Right When the Government Is Wrong (26 page)

143

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 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.

145

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 the latter case, you actually have a legal right to be free from that kind of action, whether perpetrated by an individual or a government (in the Boston Road Case, you do not have a legal right); if that right is transgressed, then you are able to sue the offending party in court for a remedy.

If the King found that the claim against him was legitimate, then he authorized courts to hear the claim, with the attorney general representing him as a party. These are the antecedents of what we now know as
judicial
petitions; lawsuits against the government, heard and decided in a court of law. Gradually, the requirement of formal consent withered away, and the King lost the right to say when and if the government could be sued by virtue of judicial doctrine (the King himself would never have voluntarily agreed to such a large-scale waiver of immunity). Thus, historically the government and its officials were not above the law, but held accountable to it. In addition to accountability to the people, judicial petitions have the essential benefit of ensuring that disputes between individuals and the government are resolved by a neutral arbiter. As James Madison proclaimed in
Federalist
No. 10, “No man is allowed to be a judge in his own cause.” Every child knows what happens when you get to cut the pie
and
choose the first piece. Eventually, the King lost that right.

147

Judicial petitions became especially important in early America because, as James Madison suggested in the statement above, individuals distrusted legislatures and favored the neutrality offered by an independent judiciary. In fact, the need for courts unbiased in the government's favor was one of the primary reasons for the creation of the judiciary as a separate branch of government: The Founders recognized the danger of the government being a judge in its own cause. The Chief Justice of the Virginia Court of Appeals once summarized the proper role for courts:

The Legislature are to form rules for the conduct of the citizens. . . . The province of the Judiciary [is] to decide all questions which may arise upon the construction of laws or contracts,
as well between the government and individuals, as between citizen and citizen. .
. . If a contract is entered into on behalf of the government pursuant to an existing law and a contest shall arise about the meaning of the contract, it belongs to the Judiciary to decide what the contract was, and, if the Legislature shall decide the question, they invade the province of the Judiciary,
contrary to the Constitution
.
⁸

The ability of the government to be sued in courts of law was therefore not only necessary for government accountability, but also to the doctrine of separation of powers implied in the Constitution's structure. To violate the right to petition the government in courts of law jeopardizes the integrity of the entire system. Thus at the time of the founding, the Petition Clause included both a right to sue the government and a right to request the government to take or abandon a particular action. Both were based upon the interests in government accountability to the people and the resolution of disputes by a neutral arbiter, and both are essential features of liberty.

148

“You Got Served!!! But Only if You're Okay with It.”

Following the September 11th terrorist attacks, family members of the victims filed suit against the Saudi government and four princes of the Saudi royal family. They alleged that the princes had knowingly funded Al Qaeda vis-à-vis the Saudi High Commission for Relief to Bosnia and Herzegovina, a Saudi charity, and thus should be held accountable for the attacks. The relevant statute for establishing whether the Saudi princes could be sued in America was the Foreign Sovereign Immunities Act (FSIA), which creates a presumption of immunity from suit.

In the case
In re Terrorist Attacks on September 11th 2001
(2008), the trial court dismissed the case for lack of jurisdiction. The Second Circuit affirmed the dismissal, ruling that the Saudi government was immune, the FSIA's protections applied to the princes as well as the government (despite the absence of text in the statute granting government officials immunity), and the charity was acting as an “organ” of the government, thus immunizing it as well. Interestingly, the Act was amended to allow for terrorism-related claims against foreign states. However, the federal government maintains a list of which states remain immune, and which may be sued. Unfortunately for family members of the victims, Saudi Arabia was not on that list of states that may be sued. In other words, those entities could not be held to answer for their actions in American courts because President Bush personally immunized them, and federal law permitted him to do so.

Now consider that foreign businesses which manufacture some kind of component part can be held liable in American courts if they purposefully targeted the American market, even though those component parts were incorporated into a final product elsewhere. This makes perfect sense: If you expect that your actions may harm someone, you should also expect to be held accountable in the place where the harm is caused. And yet, foreign governments, their officials, and even charities acting on their behalf, are free to fund terrorist organizations that they know are intent on killing innocent American civilians, and still escape responsibility in our courts when their officials are friends of the president.

149

Despite the crucial role which the right to petition plays in our constitutional system, the government has managed to shield itself from judicial petitions via the doctrine of sovereign immunity. Why can the government say when it will be sued and when it will not? What is the basis for treating a government which harms innocent persons differently from businesses and individuals who harm innocent persons? As you may have guessed, sovereign immunity cannot be reconciled with the right to petition the government judicially for redress of grievances: It is the negative of a judicial petition. As we shall see, the doctrine of sovereign immunity has vastly changed from its understanding at the time of the adoption of the Constitution, and in so doing has become one more legal device which government has crafted to eviscerate the right to petition, and therefore escape accountability to the people for its violations of the law.