54 U. Cin. L. Rev. 1153 (1985-1986)
Shall Make No Law Abridging ...: An Analysis of the Neglected, but Nearly Absolute, Right of Petition

handle is hein.journals/ucinlr54 and id is 1165 raw text is: SHALL MAKE NO LAW           ABRIDGING...: AN
ANALYSIS OF THE NEGLECTED, BUT NEARLY
ABSOLUTE, RIGHT OF PETITION
Norman B. Smith*
INTRODUCTION
The right of petitioning is an ancient right. It is the cornerstone
of the Anglo-American constitutional system. Petitioning is the
likely source of the other expressive rights-speech, press, and
assembly. The development of petitioning is inextricably linked
to the emergence of popular sovereignty. Under the Magna Carta,
the nobility used petitioning to secure their rights against the
king. Under the Petition of Right, parliament used petitioning to
gain popular rights from the king. Finally, in the struggle over
the Kentish petition, the people used petitioning as the means to
secure their own rights against parliament. The critical importance
of the right of petition in our constitutional scheme cannot be
fully appreciated without an awareness of its extraordinarily rich
history. Holmes's pronouncement that [t]he life of the law has
not been logic: it has been experience' applies with particular
force to the right of petition.
The Supreme Court's recent decision in McDonald v. Smith2
reflects an inadequate understanding of the history and purpose
of the right to petition and placed inappropriate limitations on
this right. A comprehensive examination of this fundamental right
is therefore appropriate.
Part I of this article traces petitioning from its origins in
Medieval England. Part II studies petitioning during the turbulent
years of the Civil War, Interregnum, Restoration, and Glorious
Revolution, a time when petitioning was used with great frequency
on all manner of subjects and involved masses of people.
Part III shows how petitioning became a fully matured, absolute
* LL.B., Harvard Law School, 1965; Senior Partner, Smith, Patterson, Follin,
Curtis, James & Harkary. Research and editorial assistance of Theresa M. Munson,
student of the Vermont Law School, is gratefully acknowledged.
1. O.W. HOLMES, JR., THE COMMON LAW 1 (1881).
2. 105 S. Ct. 2787 (1985) (holding exercise of right to petition confers qualified,
not absolute, immunity in suits for defamation).

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