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CRS Annotated Constitution

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FIRST AMENDMENT
RELIGION AND EXPRESSION
RIGHTS OF ASSEMBLY AND PETITION

Background and Development

The right of petition took its rise from the modest provision made for it in chapter 61 of Magna Carta (1215).207 To this meagre beginning are traceable, in some measure, Parliament itself and its procedures in the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by “petition of right.” Thus, while the King summoned Parliament for the purpose of supply, the latter—but especially the House of Com[p.1188]mons—petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as it increased in importance it came to claim the right to dictate the form of the King’s reply, until, in 1414, Commons declared itself to be “as well assenters as petitioners.” Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed “the inherent right to prepare and present petitions” to it “in case of grievance,” and of Commons “to receive the same” and to judge whether they were “fit” to be received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and “all commitments and prosecutions for such petitioning to be illegal.”208

Historically, therefore, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if the First Amendment read: “the right of the people peaceably to assemble” in order to “petition the government.”209 Today, however, the right of peaceable assembly is, in the language of the Court, “cognate to those of free speech and free press and is equally fundamental. . . . [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions—principles which the Fourteenth Amendment embodies in the general terms of its due process clause. . . . The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question . . . is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.”210 Furthermore, the right of petition has expanded. It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters.211 The right extends to the “approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of ac[p.1189]cess to the courts is indeed but one aspect of the right of petition.”212

The right of petition recognized by the First Amendment first came into prominence in the early 1830’s, when petitions against slavery in the District of Columbia began flowing into Congress in a constantly increasing stream, which reached its climax in the winter of 1835. Finally on January 28, 1840, the House adopted as a standing rule: “That no petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territories of the United States in which it now exists, shall be received by this House, or entertained in any way whatever.” Because of efforts of John Quincy Adams, this rule was repealed five years later.213 For many years now the rules of the House of Representatives have provided that members having petitions to present may deliver them to the Clerk and the petitions, except such as in the judgment of the Speaker are of an obscene or insulting character, shall be entered on the Journal and the Clerk shall furnish a transcript of such record to the official reporters of debates for publication in the Record.214 Even so, petitions for the repeal of the espionage and sedition laws and against military measures for recruiting resulted, in World War I, in imprisonment.215 Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the Capitol. The march of the veterans on Washington in 1932 demanding bonus legislation was defended as an exercise of the right of petition. The Administration, however, regarded it as a threat against the Constitution and called out the army to expel the bonus marchers and burn their camps. Marches and encampments have become more common since, but the results have been mixed.

The Cruikshank Case.—The right of assembly was first before the Supreme Court in 1876216 in the famous case of United[p.1190]States v. Cruikshank.217 The Enforcement Act of 1870218 forbade conspiring or going onto the highways or onto the premises of another to intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States. Defendants had been indicted under this Act on charges of having deprived certain citizens of their right to assemble together peaceably with other citizens “for a peaceful and lawful purpose.” While the Court held the indictment inadequate because it did not allege that the attempted assembly was for a purpose related to the Federal Government, its dicta broadly declared the outlines of the right of assembly. “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.”219 Absorption of the assembly and petition clauses into the liberty protected by the due process clause of the Fourteenth Amendment means, or course, that the Cruikshank limitation is no longer applicable.220

The Hague Case.—Illustrative of this expansion is Hague v. CIO,221 in which the Court, though splintered with regard to reasoning and rationale, struck down an ordinance which vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. Justice Roberts, in an opinion which Justice Black joined and with which Chief Justice Hughes concurred, found protection against state abridgment of the rights of assembly and petition in the privileges and immunities clause of the Fourteenth Amendment. “The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions[p.1191]may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”222 Justices Stone and Reed invoked the due process clause of the Fourteenth Amendment for the result, thereby claiming the rights of assembly and petition for aliens as well as citizens. “I think respodents’ right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non–existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose.”223 This due process view of Justice Stone has carried the day over the privileges and immunities approach.

Later cases tend to merge the rights of assembly and petition into the speech and press clauses, and, indeed, all four rights may well be considered as elements of an inclusive right to freedom of expression. Certain conduct may call forth a denomination of petition224 or assembly,225 but there seems little question that no substantive issue turns upon whether one may be said to be engaged in speech or assembly or petition.


Footnotes

207 C. Stephenson & F. Marcham, Sources of English Constitutional History 125 (1937).
208 12 Encyclopedia of the Social Sciences 98 (1934).
209 United States v. Cruikshank, 92 U.S. 542, 552 (1876) , reflects this view.
210 De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937) . See also Herndon v. Lowry, 301 U.S. 242 (1937) .
211 See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961) .
212 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) . See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913–15 (1982) ; Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980) (boycott of States not ratifying ERA may not be subjected to antitrust suits for economic losses because of its political nature).
213 The account is told in many sources. E.g., S. Bemis, John Quincy Adams and the Union, chs. 17, 18 and pp. 446–47 (1956).
214 Rule 22, para. 1, Rules of the House of Representatives, H.R. Doc. No. 256, 101st Congress, 2d sess. 571 (1991).
215 1918 Att’y Gen. Ann. Rep. 48.
216 See, however, Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868), in which the Court gave as one of its reasons for striking down a tax on persons leaving the State its infringement of the right of every citizen to come to the seat of government and to transact any business he might have with it.
217 92 U.S. 542 (1876) .
218 Act of May 31, 1870, ch.114, 16 Stat. 141 (1870).
219 United States v. Cruikshank, 92 U.S 542, 552–53 (1876).
220 De Jonge v. Oregon, 299 U.S. 353 (1937) ; Hague v. CIO, 307 U.S. 496 (1939) ; Bridges v. California, 314 U.S. 252 (1941) ; Thomas v. Collins, 323 U.S. 516 (1945) .
221 307 U.S. 496 (1939) .
222 Id. at 515. For another holding that the right to petition is not absolute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact that defamatory statements were made in the context of a petition to government does not provide absolute immunity from libel).
223 Id. at 525.
224 E.g., United States v. Harriss, 347 U.S. 612 (1954) ; Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961) .
225 E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971) .
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