Immigrants and the Right to Petition - NYU Law Review

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NEW YORK UNIVERSITY LAW REVIEW
[Vol. 78:667
statements in Verdugo-Urquidez. The Petition Clause drafters apparently
did not understand the terms "the people," "every person," and
''every man" to be anything but synonyms (to the extent they gave the
terms any thought at all). 163 Nor is there evidence in the legislative
history of the Petition Clause that its framers sought to restrict the
petitioning rights of immigrants, nor that they desired to leave petitioners
such as the much-publicized Acadian refugees outside the protection
of the Clause. By July 1789, the same First Congress was
considering a petition from an immigrant-on which it granted relief
in September 1789.164 If the Verdugo-Urquidez analysis were correct,
one would expect to find at least some evidence of an intent to exclude
immigrants from the protections of the Clause.
65
The central congressional debate on the Petition Clause concerned
an unsuccessful effort to extend the provision to include a right
to "instruct" legislators and thereby bind them in their deliberations
and voting. 166 Although the participants in this debate did not directly
address the status of noncitizens as "people," 167 the discussion may
offer some indirect support for the view of the Verdugo-Urquidez ma-
163 In a House debate, Elbridge Gerry referred to "the petitions and instructions of our
constituents," I Annals of Cong., supra note 161, at 765-66, which arguably suggests an
assumption that only constituents-the enfranchised-could petition. Gerry, however, was
addressing a motion to include a right to instruct representatives. Even if he were implying
a dramatic break from historic practice by yoking petition rights to the franchise, this still
would not have yielded an alienage classification for petitioning because noncitizens were
not categorically excluded from the vote. See Raskin, supra note 134, at 1399-1400
(describing alien suffrage in American colonies and after independence).
164 See infra notes 193-204 and accompanying text.
165 Over the course of House and Senate debate, Madison's draft Petition Clause, see
text accompanying note 161 supra, was amended in two principal ways: by substituting the
verb "petition" for "applying ... by petitions, or remonstrances" and by substituting the
object "government" for "Legislature." The various drafts, amendments, and votes are set
forth in Cogan, supra note 155, at 129-39; see also Andrews, supra note 89, at 611-21 (tracing
legislative history of Petition Clause). James Pfander has argued that the First Congress's
substitution of the term "government" for "Legislature" demonstrates an intent
that the right to petition all three branches of government be secured by the Petition
Clause. Pfander, supra note 90, at 956-59.
166 Representative Tucker moved to add a formal right of instruction to the proposed
amendment, 2 Cong. Reg., 1st Cong., 1st Sess. (Aug. 15, 1789), reprinted in Cogan, supra
note 155, at 143, 144. After extended debate on popular sovereignty, the dangers of regionalism
and factionalism, the value of a deliberative national body, and the impact on
ratification prospects of including controversial provisions together with consensus amendments,
Tucker's motion was defeated forty-one to ten. Id. at 198-217, reprinted in Cogan,
supra note 155, at 144-58; see also Mark, supra note 84, at 2209-12 (reviewing congressional
debate); id. at 2209 n.252 (describing colonial practice of "instruction," in which representative
was obligated to vote in particular manner by constituents).
167 The only comments regarding who constitutes "the people" capable of instruction
was an exchange prompted by Representative Livermore, who wondered whether "the
people" refers to "a part of the people in a township or district, or ... the state legislatures"
2 Cong. Reg., 1st Cong., 1st Sess. (Aug. 15, 1789), reprinted in Cogan, supra note