Immigrants and the Right to Petition - NYU Law Review

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Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:667 at the time of the Founding demonstrates that the right was exercised by noncitizens, including immigrants, Native Americans, and slaves, as well as by other marginalized members of the polity, such as women, Jews, and free blacks. 84 Foreigners, including those with little "connection with this country," 8 5 successfully petitioned Congress, at times with the support of Framers like James Madison and Alexander Hamilton. 6 Moreover, the concept of "citizenship," like the degree of one's "connection with this country," was ambiguous at the Founding and did not function as the sort of classifier of rights claimed by the Verdugo-Urquidez Court. 87 In the absence of evidence that the drafters of the First Amendment sought to alter the scope or practice of the right to petition by limiting its exercise only to "persons who are part of a national community or who have otherwise developed sufficient connection with this country"81 8 -and research has revealed none-the rich historical evidence of noncitizen petitioning confirms that the Petition Clause protects all persons present in the nation, regardless of their immigration status. It thereby contradicts the Verdugo-Urquidez Court's conclusion that the Framers intended to exclude noncitizens, or at least those without a sufficient connection to the national community, from the protections guaranteed to "the people" by the First and Fourth Amendments. I do not contend that history is determinative in the interpretation of constitutional text. But if the Verdugo-Urquidez embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment."); Laurence H. Tribe, American Constitutional Law 772 (2d ed. 1988) ("[Tihe due process clause [of the Fourteenth Amendment] has been held to protect... the first amendment freedom[] [to] petition .... "); cf. Plyler v. Doe, 457 U.S. 202, 210 (1982) (holding that undocumented children are "persons" protected by Fourteenth Amendment). 84 Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Fordham L. Rev. 2153, 2182 (1998) (noting petitioning in colonial era by "those usually conceived of today as having been completely outside of direct participation in the formal political culture, namely women, blacks (whether free or slave), Native Americans, and, perhaps, even children" (citations omitted)); Norman B. Smith, "Shall Make No Law Abridging...": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1178 n.159 (1986) ("Before universal suffrage, those who did not possess the franchise frequently resorted to petitioning as a means of influencing governmental action. This group included those who did not meet the property qualifications, slaves and free blacks, women, and aliens."). 85 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). 86 See infra Parts II.C.1 (discussing right to petition under colonial governments), II.C.2 (discussing practice of states under Articles of Confederation), I1.C.3 (discussing drafting of petition clause), and II.C.4 (discussing petitioning by noncitizens to First Congress). 87 See infra notes 134-35 and accompanying text (arguing that concept of "citizenship" was "unsettled" at time of Founding). 88 Verdugo-Urquidez, 494 U.S. at 265.
Imaged with the Permission of N.Y.U. School of Law May 20031 IMMIGRANTS AND THE RIGHT TO PETITION principle is to be defended, it must be done on grounds other than the historical arguments relied on by the Court. A. English Traditions Petitioning is an ancient tradition, 89 one that by some accounts gave rise to the more familiar expressive freedoms of speech, assembly, and the press. 90 Foundational English documents from the Magna Carta 9 ' to the Bill of Rights of 168992 recognized a right to petition the King and Parliament for redress of both public and private grievances. 93 As one historian of English petitioning concluded, "By the time of the American Revolution, petitioning had become extremely popular in England; it was no longer checked or penalized and was frequently successful. '94 English law did not limit petitioning based on citizenship status. Though seventeenth-century English law recognized distinctions be- 89 On early English petitioning, see Carol Rice Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio St. L.J. 557, 596-603 (1999) (summarizing development of right to petition from Magna Carta to mid-eighteenth century); see also Mark, supra note 84, at 2163 & n.24 (dating practice of petitioning to before Magna Carta); Smith, supra note 84, at 1154 (naming "the earliest petition recorded in our Anglo-American constitutional history" as petition in 1013 to Aetheired the Unready, enumerating grievances and summoning king who had fled England during Danish invasion). 90 James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 904 (1997) ("As a lawful mode of protest, the right to petition gave rise to the freedoms of speech, press, and assembly .... "); Smith, supra note 84, at 1168 ("Petitioning's cognate rights, speech, press, and assembly, were late to emerge as constitutional liberties."). 91 The Magna Carta provides: [I]f we or our justiciar or our bailiffs or any of our servants offend against anyone in any way, or transgress any of the articles of peace or security, and the offence is indicated to four of the aforesaid twenty-five barons, those four barons shall come to us or our justiciar, if we are out of the kingdom, and shall bring it to our notice and ask that we have it redressed without delay. J.C. Holt, Magna Carta 470-71 (2d ed. 1992) (quoting Magna Carta (1215)). 92 Bill of Rights, 1689, 1 W. & M. Stat. 2, c. 2 (Eng.) (declaring that "it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal"). 93 Mark, supra note 84, at 2165-66; Smith, supra note 84, at 1156 (describing how "petitioning emerged as the medium for both individual and general requests for legal change and adjustment"). 94 Smith, supra note 84, at 1166; see also Larry D. Kramer, The Supreme Court 2000 Term-Foreword: We the Court, 115 Harv. L. Rev. 4, 20 (2001) ("[T]here was consensus about a great deal of fundamental law, particularly in the eighteenth century . . . includ[ing] ... the existence of certain inalienable rights, such as the right ... to petition the government .... ); Mark, supra note 84, at 2163 ("[R]equests for a redress of grievances initially had a tenuous quality and only after centuries of experience became such a part of English political life that they lay at the core of English constitutionalism.").
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