2010/10/25

Right to Petition for Redress of Grievances

One of the best period treatises on the subject is The Subject's Right
of Petitioning
, Anonymous. (1703)

It is important to explain that the First Amendment was written with a
view to the penalties and impediments that had been imposed in England
in the period preceding it. See particularly the suppression of the
London Corresponding Society and Society of Constitutional Information.

The right to petition is only the right not to be penalized or impeded.
It is not the right to get redress. Originally, courts and government
were not viewed as a "redress delivery service". One got redress through
"self-help" or with the aid of volunteers from the community. Since this
could devolve into civil conflict, courts were established to allow a
pause in the dispute while disputants presented their arguments and
evidence and gave the community an opportunity to line up on one side or
the other. A court decision was supposed to represent the community
consensus, which is part of the reason the jury came to be the principal
decider.

So one should not look to the First Amendment for a right to redress,
only to petition for redress. There is a right to a kind of redress, but
it is to be found in the Ninth Amendment, not the First, and it is
represented in the prerogative writs, which were presumed to be remedies
without having to be explicitly declared as such, as evidenced by the
demand by the New York Ratifying Convention for a right to bring such
writs "in the name of the people", which was a recognition that the
people were now the sovereign and inherited the prerogative writs. See
Presumption of Nonauthority and Unenumerated Rights


Perhaps the most important of the prerogative writs was the writ of quo
warranto, whereby any person, as demandant, could file and serve the
writ on an official, the respondant, whereupon he would have 3-20 days
to prove his authority to the court, failing which he would be expected
to cease such exercise, and perhaps vacate the office if it was holding
the office that was being challenged. Note that this was not a petition,
but a demand. The burden of proof was on the respondant. The writ would
issue as an order even if the court failed to hold a hearing.

We've come a long way since the law worked that way.

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