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Amdt1.10.1 Historical Background on Freedoms of Assembly and Petition

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The right of petition took its rise from the modest provision made for it in chapter 61 of the Magna Carta (1215).1 To this meager beginning are traceable, in some measure, Parliament itself and its procedures for 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 Commons—petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as the House of Commons increased in importance, it came to claim the right to dictate the form of the King’s reply, until, in 1414, the House of Commons declared itself to be “as well assenters as petitioners.” Two hundred and fifty years later, in 1669, the House of 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 the House 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.” 2

The Supreme Court has asserted a similarly historical basis for the right of peaceable assembly for lawful purposes, saying “it is, and always has been, one of the attributes of citizenship under a free government.” 3 One commentator has noted that the Court originally conceived the rights of petition and assembly as components of a single right but that the Court later treated the right of assembly as protecting a distinct interest in “the holding of meetings for peaceable political action.” 4

The right of petition recognized by the First Amendment first came into prominence in the early 1830s, 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.5 For many years 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.6 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.7 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.

C. Stephenson & F. Marcham, Sources of English Constitutional History 125 (1937). back
12 Encyclopedia of the Social Sciences 98 (1934). back
United States v. Cruikshank, 92 U.S. 542, 551 (1876). back
Edward S. Corwin, The Constitution and What It Means Today 293–94 (Harold W. Chase & Craig R. Ducat eds., 1973) (citations omitted). Comparing United States v. Cruikshank, 92 U.S. 542, 552 (1876) to De Jonge v. Oregon, 299 U.S. 353, 364–365 (1937), Corwin observed: “Historically, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if Amendment I read: ‘the right of the people peaceably to assemble’ in order to ‘petition the government.’ Today, however, the right of peaceable assembly is the language of the Court, ‘cognate to those of free speech and free press and is equally fundamental. . . . The holding of meetings for peaceable political action cannot be proscribed.’” Id. back
The account is told in many sources. E.g., Samuel Flagg Bemis, John Quincy Adams and the Union, chs. 17, 18 and pp. 446–47 (1956); William Lee Miller, Arguing About Slavery: The Great Battle in the United States Congress 465–487 (1996); David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829–1861 3–23 (2005). back
Rule 22, ¶ 1, Rules of the House of Representatives, H.R. Doc. No. 256, at 571 (1991). back
1918 Att’y Gen. Ann. Rep. 48. back