Tuesday

August 11th, 2020

Insight

Go ahead, make that demand. Just don't call it a petition

 Stephen Carter

By Stephen Carter Bloomberg View

Published July 31, 2020

Petitions are much in the news these days, and a lot of people think they're doing serious damage. There's the petition that got a San Francisco museum curator fired after he assured the staff that the institution would continue to acquire works by white artists. There's the petition to get a professor fired for allegedly falling asleep at an online anti-racism forum. There's a petition to fire a tenured professor who argued that slavery is wrong because it violates libertarian norms, which evidently is different from calling it morally wrong.

Now, don't worry. This isn't another screed about free speech. Today I'm wearing my Grammar Curmudgeon hat. With petitions so commonplace, I'm pondering a pair of questions: What is a petition anyway? Are there limits on the sort of joint statements that should qualify for the term?

Let's start at the beginning. I'm all for petitions (with a caveat to which we will come), but I would never sign one. I'm with Harvard University's Annette Gordon-Reed, who tweeted in December: "I don't sign petitions, even for things I support, partly because I don't like to sign things I didn't write. Instead, I try to do other things that help the cause." I, too, put my name only on what I draft myself.

But even as a consistent nonparticipant, I believe in petitions. The right to petition government for redress of grievances is enshrined in the First Amendment. It's been called the "cornerstone" of the constitutional system. Contemporary scholarship cites the petition clause in opposition to everything from English-only laws to lobbying. (Yes, it's commonly asserted that lobbying is an exercise of the petition right, but some scholars disagree.)


To be sure, the petitions that nowadays lead to such furor tend to be directed to private entities, not government. The traditional meaning is nevertheless a useful place to start, because the history informs the very idea that it matters when a great number of people put their names on a document.

In colonial times, the right to petition often entailed a requirement that the government consider the request and respond to it, in what was then the continental tradition. The traditional use of petitions was far from an empty letter: One study of European petitions in the early modern era found that they often galvanized public action. Perhaps taking note, the framers of the U.S. Constitution opted for a lesser version of the right, with no required government response. Among their fears probably was an avalanche of petitions against slavery.

The avalanche came anyway. During the mid-1830s, abolitionists waged a major campaign to petition both the state and federal legislative branches to end slavery. The fight included one of the young nation's earliest battles over church and state, because many of the petitions were from clergy. The pro-slavery side objected, in terms common today, that the petition could not be considered because pastors had no business trying to influence policy. In any case, Congress responded to the campaign by adopting a "gag rule," all but forbidding the consideration of petitions by the legislature - thereby upending the very purpose for which the clause existed.

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Still, it's important to note that even back in the founding era, the exercise of the petition right was never limited to the powerful. Women, the unpropertied and racial minorities used petitions to give voice to concerns ignored in mainstream political debate. Most petitions were filed by organized groups seeking social change, but some were filed by individuals seeking justice, including enslaved workers requesting release. In 1786, for instance, a man named Prime filed a petition with the New Jersey legislature, praying "most humbly" that he be declared free on the ground that he had left British territory (where he would already have been free) and fought for the colonial side. His petition was granted.

The more common petition with its multiple signatories tended to be carefully crafted. Often signatures were by invitation. Those invited might be consulted during the drafting process, where they raised objections and offered suggestions, much as Supreme Court justices argue fine points of law and language when they review proposed opinions prior to release. Thus the final document tended to be a group effort.

Part of what made a petition a petition was precisely the care with which the document was crafted and signed. But something else has also heretofore been important: the tone.

Cue the Oxford English Dictionary. First definition: "A supplication, entreaty, or prayer." Second: "A written or formal request." In particular, the OED tells us, the word refers to a request "signed by many people" that appeals to a group in authority "for some favour, right, or mercy."

Petitions in the classic sense were respectful and thoughtful, focused more on requesting than demanding.


Now, we don't live in a respectful, thoughtful, or undemanding era, and I'm not about to tell other people how to express their views. (Been there, done that.) What I'm more interested in is whether a document can be so demanding and uncivil that it doesn't fit the traditional definition of a petition.

Many of today's controversial petitions carry a tone of "Do this or else." But a furious demand that an individual be punished or even fired is hardly the same animal as the traditional request for redress of grievances. True, tradition need not bind us.

But even though today's petitions tend to be aimed at private not public institutions, one wonders whether we might reserve the word for petitions in the classic sense, documents crafted as respectful requests, which in tone invite conversation and response. I'm not arguing against angry, harshly worded demands, which at times are entirely appropriate; I'm just asking whether they're actually petitions.

We wouldn't call a warmly written email from a political campaign a note from a friend. We wouldn't call a letter from a creditor a solicitation of voluntary contributions. So no matter how many people sign a document phrased as a demand, maybe we shouldn't call it a petition. Let's take a page from the radicals of the 1960s and just call a demand a demand.

(COMMENT, BELOW)

Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. .

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