How the Judiciary Stole the Right to Petition – Part 1

The right (of petition) embraces dissent, and “would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen. [D]eprivation of it would at once be felt by every freeman as a degradation.”

This writer accepts the political wisdom and practical truth of the above quotation from a case that he presented and lost to the Court of Appeals. This Article examines the mechanisms by which the government has undermined and stolen the Right of Petition presently, and prospectively. To be sure, it has “practically denied” the Right of Petition.

The theme suggests a practical implication. It is not that government has accomplished the “impossible” of practically denying the right, but rather that the “spirit of liberty” has almost “wholly disappeared and the people have become servile and debased.”

But “fitness” to exercise the rights of freemen is never determined by the many who have become servile, but by the few who refuse, at any cost, to surrender their rights to government.

It is for those very important few, lawyers, ordinary citizens and patriots, who carry the Nation’s full burden of liberty on their shoulders, for whom this Article is written.

Foreword: The Court has addressed the Petition Clause in many contexts, but four central aspects of it have been completely ignored. Those central aspects tell the story of how the Judiciary stole the most important parts of the First Amendment Petition Clause:

The right of the individual to enforce his rights against government and its agents.

The First Aspect is the right to sue government for redress. Instead of such a right, “sovereign immunity” is the rule, and government can only be sued according to its consent. Immunity abridges the right to redress grievances with government.

This aspect demonstrates that sovereign immunity is unconstitutional and irrational.  The reason: The right to petition government for redress and governmental immunity from redress, are direct contradictions. The former is our First Amendment.

The latter is the progressive result of Supreme Court decisions.

The Second Aspect is the inconsistency of personal and official immunities with the Petition Clause.  Immunity “law” evolved from the Court attempting to navigate between that contradiction, on the one hand, and exposing that its immunity jurisprudence has rendered the Constitution all but unenforceable by the people against their government, on the other.  That made the law so unnecessarily complex, compound and convoluted that only the rich can afford the attorneys necessary to protect constitutional rights or prosecute rights violators.  That is a two-class society in the making because only the rich can obtain justice under the law.

If there is to be personal or official immunity then there must be alternatives consistent with the Petition Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

Both the Court, and Congress, has ignored their call.

The Third Aspect is judicial persecution of persons for “criminal exercise” of the Right to Petition. Because the significance of the Petition Clause is so judicially downplayed, United States attorneys frequently charge protected activity as crimes.

Defense lawyers and public defenders are not trained to spot or effectively defend against such abuses. The result is putting thousands of “political prisoners” in jail for “criminal exercise” of Petition Clause rights.

The Right to Petition is necessarily obnoxious to government’s will. After all, a petition for redress is a complaint that government violated rights and a demand that it stop, and to compensate the complainant for damages.

It should not surprise anyone that government does not want the people doing that effectively.

In America, a person who petitions government over grievances of constitutional rights violations that government does not want to hear, can go to prison for felonies like obstruction of justice, bank or mail fraud, or making “false claims.”

In the United States today there are thousands of people in federal prisons for acts and intents that were merely an exercise of a petition right that is obnoxious when government (because of immunity) is stone deaf to petitions to redress grievances.

It has whole systems of laws to politically persecute those who press their grievances “too far.” But the common law history of the Right demonstrates that “too far” is in most cases, a part of the Right of Petition.

The Fourth Aspect is the way the judiciary itself treats the Right of Petition when exercised in the courts.

The Court has worked out stringent tests to protect First Amendment rights requiring government meet standards of “compelling state interest”; “clear and present danger,” and striking laws for “vagueness” and “overbreadth” that fail the tests.

Yet, in petitioning before government’s very own courts, the rules are vague, ambiguous, overly broad and judges determine such petitions arbitrarily and without care for the merits by dismissals which are by “law” with prejudice, as if on the merits.

Appellate courts simply refuse to address major constitutional issues in unpublished opinions that decide cases without addressing the merits. The Court refuses to hear any of the four aspects raised in this article.

The combined effect of these four arrogances to the Right to Petition leaves the people without effective means to communicate with government through process of law. The Court has often acknowledged that the alternative to judicial process is force.

Therefore, in so abridging the right of the people to obtain just redress through the compulsory process of law, the judiciary is setting the people up for violence against government by refusing to hear their cries for justice.

That is our government waging a war of oppression against its own people.

In future articles, each of these aspects will be discussed individually.

John E. Wolfgram

John E. Wolfgram, B.A. Degree (University of Wisconsin), J.D. Degree (Southwestern University 1977) Wolfgram founded the Constitutional Defender Association in 1989 to advance Petition Clause Principles.

Its name derives from the observation that the practical value of a Constitution depends on the effective enforcement of constitutional rights and limits against government, by the people. The Petition Clause is the People’s Right to redress government violations of the Constitution.

It is The Constitution’s Defense system against government usurpation and oppression. More about the author and his legal philosophy can be obtained on line at www.constitution.org. There, look up his name under “Confirmed Abuses.”

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