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Constitutional education, history, commentary, reform, compliance, and interpretation.

2007/05/15

Right to petition does not entail a right to get an answer

The suit of the We the People Foundation (WTP) v. U.S. makes a flawed argument, that the right to petition entails the right to get an answer. It does not. The right to petition is only the right not to have a petition penalized or obstructed.

1. There is a right to answers to some kinds of questions, but not all kinds. The kinds to which we have a right include questions to officials of the form "What actions have you committed?" and "How and how much public funds did you expend?" An example of a kind to which we do not have a right is "What is the time of day?"
2. There is a right to redress, but the redress is not, with the exception of the kinds of questions to which we have a right to answers as in (1), the answers themselves, but the remedy sought if they do not answer. The proper historical names for the remedies are the prerogative writs, such as quo warranto, habeas corpus, prohibito, mandamus, procedendo, and certiorari. The correct way to have framed the WTP petition was as a petition for a writ of quo warranto, under which if the government does not provide answers, that is, proof of its authority to require persons to file returns and pay income taxes on wages, then the petitioners obtain the redress of a judgment by the court that the government must cease making and enforcing its unauthorized claims.
3. The provision of the U.S. Constitution that provides the basis for this right is not the First Amendment Right of Petition, which is only the right not to be penalized for petitioning, or obstructed in doing so. It is also not the Fifth Amendment Right of Due Process, which is only about restrictions on the ways that the exercise of rights may be disabled. It is not contained in the Seventh Amendment provision "rules of the common law" because that only applies to cases tried by a jury. It is contained in the Ninth Amendment, but the way to support that is to go back to the amendments proposed by the state ratifying conventions, which include:
  • "Provided, That all commissions, writs, and processes, shall run in the name of the people of the United States, and be tested in the name of the President of the United States, or the person holding his place for the time being, or the first judge of the court out of which the same shall issue." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
  • 10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
  • “That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.” “That the Privilege of the Habeas Corpus shall not by any Law be suspended for a longer term than six Months, or until twenty days after the Meeting of the Congress next following the passing of the Act for such suspension.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
  • "10. That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful; and that such remedy ought not to be denied nor delayed.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
  • "12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
  • "12. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property,or character; he ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
  • "1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
  • "1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
From there we have to go back to the historical meaning of those writs, adopted by reference, as remedies which may sought by the sovereign, which, following the Declaration of Independence, became the people, any one of which may appear on behalf of all.

Now, I realize this chain of reasoning is somewhat vague and indirect, and that is has been taken advantage of to deny the remedies, but if it is really understood the principles are clear. Our job is to not only understand it but assert it, and perhaps get a constitutional amendment that makes it explicit.

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