Restoring the Right to Petition

The Petition Clause of the First Amendment provides that Congress shall make no law abridging the right of the people to "petition the government for a redress of grievances." In a recent article, <i>Downsizing the Right to Petition</i>, Professor Gary Lawson and Mr. Guy Seidman argue that the Clause simply restates the established right of individuals to communicate their views to the government. As part of this minimalist interpretation of the Clause, Lawson and Seidman take particular issue with my claim that the framers understood the right to petition the courts for redress as reaffirming the judicial role in determining claims against the government and as rejecting sovereign immunity. My claim appeared in <i>Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government</i>. Although they do not dispute my methodology or my evidence, Lawson and Seidman nonetheless argue, essentially on logical grounds, that Sovereign Immunity fails to make its case that the Petition Clause trumps the jurisdiction-withdrawing function of the doctrine of sovereign immunity. In this brief reply, I contend that <i>Downsizing</i> fails to come to grips with my revisionist claim that the Petition Clause should be read to reject the doctrine of sovereign immunity. I first sketch the early stages of the argument that Lawson and Seidman make in <i>Downsizing</i>, much of which appears to agree with the conclusions I drew in Sovereign Immunity. Then I take up the specific terms of the argument that Lawson and Seidman advance against my thesis. I conclude that notwithstanding whatever force <i>Downsizing</i> may have as a restatement of the current law of sovereign immunity, it does little to rebut my claims respecting the framers' historic commitment to government accountability.