Axiom

Flowchart: The Right to Petition the Judicial Department

2010-11-14T13:44:00.000-07:00

I created this flowchart to visually represent my view of how the right to petition the judiciary should function in practice. I am posting it here hoping it will help clarify some of my posts.

The Right to Petition Government for Redress of Grievances, Part VII

2010-11-13T14:50:00.000-07:00

Conservation of judicial resources, also called “the floodgates argument,” is the third rationale supporting prudential standing. Conserve what? There are two things the federal judiciary wants to conserve: it wants to prevent a flood of lawsuits from wreaking havoc with limited judicial resources (time and money), and it wants to conserve the judiciary’s “political capital.”[1] And I am not making this up. Let me quote Professor Chemerinsky, a highly regarded scholar on Constitutional Law:

Standing serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome. . . . Standing also is justified in terms of conserving the Court’s political capital. The Court once stated: ‘Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies . . . they would become the organs of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches.’[2]

These few sentences made me sick to the stomach when I first read them. What’s the big deal you ask? In Part VI, I mentioned Justice Holmes’ The Path of the Law as one of the biggest triggers of the destruction of American law. The floodgates argument is nothing but Holmes’ jurisprudence in flagrante delicto.

Standing serves “judicial efficiency,” Professor Chemerinsky reports. Judicial efficiency is primarily understood as an argument to reduce caseloads. But Professor Chemerinsky’s quote recognizes the crucial active ingredient, so to speak, that makes the argument especially lethal: judicial efficiency helps prevent those having an “ideological stake in the outcome” from getting court access.

Is caseload reduction a value that the judiciary should seek to achieve? High caseloads involving particular areas of law are a barometer measuring the non-objectivity of the laws involved. High caseload is a crude warning system informing the people of legislative excesses. Caseload reduction, itself, can never be a value. The only legitimate function of government is to secure individual rights, and every person with an injury has a right to petition. The efficiency argument should not be used to sift out plaintiffs who will purportedly make the judiciary less efficient. What makes courts less efficient anyway? If by efficiency we mean reduction in the amount of time and money it takes for a court to adjudicate a dispute, then the thing that makes the courts least efficient is the complexity of legal questions involved in a particular case. It is precisely the complexity of legal questions that makes plaintiffs petition the judiciary for redress of grievances. But, if the courts will shirk from their core responsibility of adjudicating disputes, there is no recourse left except anarchy; neither the legislature nor the executive by their nature are equipped to adjudicate disputes.

Though the judicial efficiency argument gravely undermines the core function of the judiciary, the argument is made more egregious by grafting onto it Holmes’ idea of judicial restraint. The purpose of the courts, according to Holmes, and as Professor Chemerinsky reports, is to prevent plaintiffs with an “ideological stake in the outcome” from petitioning the judiciary. What is an ideological stake? Every case involves an ideological stake, be it tort law, contract law, or constitutional law. The stake is whether the concept of individual rights is derived from the nature of man and the conditions necessary for his survival, whether the proper function of government is to secure those rights, or whether a big-brotherly government has the power to do away with rights whenever it so pleases. The judicial branch is deliberately placed in opposition to the legislative and the executive branches to prevent legislative tyranny, to make a Leviathan government impossible by adjudicating disputes based on the “ideology” of government controlled by the rule of law. But Holmes wants judges to do away with “theory,” which means he wants judges to do away with such “social constructs” as rights or government, and instead enforce the whims of mob rule on the minority. Have you ever been bullied in school—the lead bully telling you to turn out your pockets, his minions standing around you, and his sidekick yelling, “That’s right, turn out your pockets!”? For Holmes, the legislature is the lead bully, the executive is the minions, and the judges the sidekicks. Holmes wants the judiciary, by inaction or acquiescence, to legitimize and rubber-stamp whatever the legislature decides is for the good of the United States. The legislature never had that power, and a proper government can never have such a power! In Thomas Jefferson’s words:

Giving [Congress] a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the . . . enumerations of power completely useless. It would reduce the whole [Constitution] to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. . . . Certainly no such universal power was meant to be given them.[3]

If Holmes’ view of the nature of government is accepted, and if the judiciary is indeed a sidekick of the bully, then the argument that the courts should conserve their “political capital” is not difficult to swallow. Note the implicit threat in the argument: the sidekick better not antagonize the bullies-in-charge, or else the next time it would be the sidekick who would have to turn out his pockets. But, thanks to Holmes, it is the sidekick, not the bully, who is abusive. “Such abuse of judicial power,” writes Justice Reed, “would properly meet rebuke and restriction from other branches.”[4] So, to conserve the court’s political capital entails that the courts should avoid being “organs of political theories.”[5] So what if someone’s rights are trampled upon? Did I say rights? That’s political theorizing. The judiciary ought not to indulge in political theorizing.

The sidekick is perpetually in terror of the bully-in-charge, or so the argument goes. Congress controls federal appellate court jurisdiction. It can take cases away from the judiciary. It can choose not to appoint additional judges when necessary, the effect being that judges will find it exceedingly difficult to satisfactorily dispose of a mounting caseload. The executive may choose not to enforce a judicial decision. But this is precisely why the people have a right to petition! The recourse is to petition the legislative and executive departments, or to vote out recalcitrant legislators and executives.

There is a second strand to the conservation of political capital argument. Some judges have, on occasion, under the pretext of preventing the colloquial floodgates of litigation from opening, tried to avoid deciding issues that are too controversial. As examples, look at concurring and dissenting opinions of Superme Court Justices in cases dealing with abortion, birth control, same-sex marriage, school desegregation, expansion of remedies available for Constitutional torts,[6] etc. Such avoidance is yet another symptom that indicates acceptance of Holmes’ jurisprudence: the theory-practice dichotomy. The judges seem to have overlooked the fact that such judicial timidity opens the floodgates for the legislature to drown the country into still more non-objective law. They also seem to have overlooked the fact that it is Holmes’ idea of “judicial restraint” that has damaged the American constitution, and it is more sickening because the damage has gone unnoticed by the people at large. I hope I can set the record straight.

[1] Erwin Chemerinsky, Federal Jurisdiction 51 (5th ed. 2007) (“Federal courts have finite resources in terms of time and money, but . . . the federal judiciary [also] has limited political capital.”).

[2] Id. at 59 (quoting United Pub. Workers v. Mitchell, 330 U.S. 75, 90-91 (1947)).

[3] Thomas Jefferson’s Opinion on the Constitutionality of a National Bank, 1791, available at http://www.constitution.org/mon/tj-bank.htm (last visited Nov. 13, 2010).

[4] United Pub. Workers v. Mitchell, 330 U.S. 75, 90-91 (1947) (emphasis added).

[5] Id.

[6] 42 U.S.C. § 1983.

The Right to Petition Government for Redress of Grievances, Part VI

2010-11-07T10:19:00.001-07:00

The second rationale that is said to justify the prudential standing doctrines is “case or controversy.” It should be fairly straightforward, but, sadly, it isn’t. The Supreme Court and Congress have tried to outdo each other in reducing the importance of case or controversy in adjudication of disputes. Progressives are to blame for this, especially one particular brand of progressives: environmentalists.

Article III, Section 2 of the Constitution states, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, . . . [and to] controversies [between specified parties].”[1] I elaborated in Parts III and IV that the case or controversy requirement is not a limit on the individual right to petition the judiciary, but the only way to exercise it: to get your foot inside the courthouse door, you must have an injury traceable to a defendant’s conduct. Indeed, Chief Justice Marshall, in Marbury v. Madison wrote, “The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”[2] But there is an expression used in legal circles: don’t look at a court’s lips; look at its hips. Sure, all courts have sung praises of the case or controversy rationale, but their hips have consistently danced to a completely different tune. The Supreme Court has repeatedly said that courts have an “unflagging obligation” to allow plaintiffs with concrete injuries to petition the courts.[3] But in the same breath, the Court has also allowed Congress to reduce the importance of case or controversy. Because Article III gives Congress complete power over lower federal courts (i.e. courts lower than the Supreme Court), and control over Supreme Court appellate jurisdiction, Congress can severely limit the individual right to petition by:

eliminating federal court jurisdiction, (For example, in “1981 and 1982 alone, thirty jurisdiction-stripping bills were introduced in Congress. . . . Most of the proposals stem from dissatisfaction with Supreme Court decisions . . . dealing with controversial ‘social issues’ of school prayer, abortion, and busing.”[4])
eliminating or changing the right of action in certain categories of cases. (There is a scandalous distinction between having a right and having a right of action. Congress can eliminate, change, or reduce the right of action to sue and still maintain the façade that government recognizes and protects the right. For example, imagine if one has a property right in land, but no right of action to sue those who trespass on their land.)

The common denominator in these Congress excesses is this: the individual right to petition for redress of grievances is violated. Jurisdiction-stripping has the effect of disallowing individuals with injuries from petitioning the judiciary. Tweaking the right of action has the effect of disallowing individuals from petitioning the judiciary to protect their rights.

It doesn’t end here. There are other ways in which Congress reduces the power of the judiciary to decide just deserts. Though these ways do not affect a plaintiff’s right to get his foot inside the courthouse door, they nevertheless create a huge disincentive for plaintiffs from petitioning a court for redress of grievances:

eliminating or changing the cause of action, (Courts do not infer a cause of action for violation of rights if Congress has already provided a remedy, even if the remedy if grossly inadequate.[5] That is, if someone intentionally sets fire to your house, the principle of just deserts would dictate the initiator of force should pay for your direct losses. But if the legislature, by statute, states that the remedy available for house burning is $1,000 in damages, you have no option but to sue for that paltry sum of $1,000. Thus, a court will not allow you to have an independent common law cause of action for arson.[6])
statutorily reducing the availability of remedy for certain causes of actions, (This is similar to eliminating or changing the cause of action. But here, the legislature is saying that you have an independent common law cause of action to sue for arson, but you can recover only $1,000 or your direct losses, whichever is less.)
reducing power of judicial review. (The classic example is the Administrative Procedure Act.[7] Typically, the legislature gives a pre-concocted formula that should be dispensed as justice for a given set of facts.)

I will have to tackle each of these later, but I mention these legislative excesses here to round up the picture. The point is that, armed with its modern progressive notion of separation of powers, the Supreme Court has repeatedly stated that the legislature can tell the judiciary to disregard case or controversy. The Court, after all, has tied its own hands and said that it should defer to Congress’ determination of policy choices, that separation of powers demands the courts to faithfully implement Congress policy without first determining whether the policy undermines the Constitution.

Case or controversy requires that there be a violation of an individual right and such violation be traceable to an ascertained defendant’s conduct. A third party whose right is not violated has no right to petition for redress of someone else’s grievance. Case or controversy requires that the judiciary not allow others to step in to impose their version of societal conformity on others. But Congress has undermined “case or controversy” by inserting citizen suit provisions in statutes to allow enviro-progressives to impose their version of conformity on others. Citizen suit provisions, as found in the Clean Air Act, the Clean Water Act, the Endangered Species Act, typically allow any person to sue on behalf of the environment. And because these suits originate inside administrative agencies like the EPA, and because only appeals from agency decisions are taken to the judiciary, and because the Administrative Procedure Act allows the judiciary to review and overturn agency decisions only if they are “arbitrary or capricious” or unsupported by “substantial evidence,”[8] (i.e. the Courts will rubber stamp the agency decision so long as it has given some reason—any reason—even if the Court does not agree with the reasoning), the cards are stacked against defendants from the very beginning.

The demise of “case or controversy” started in the last decade of the 19^th century. Though there were other events (and jurists[9]) that contributed to this demise, Justice Oliver Wendell Holmes’ influential article, “The Path of the Law,”[10] has proved to be the single most damaging article to American constitutionalism. Holmes argues in “The Path of the Law” that courts should not decide cases and controversies in the abstract, that courts cannot afford to engage in conceptual rhetoric because doing so would be theoretical speculation. The legislature, or the will of the majority, is all-powerful, and a paternalistic government can create and destroy rights if it so chooses; there is no way that a judge can know the truth or know which policy choice is better. If the legislature says X is a case or controversy, then so it is. If the legislature says Y is not a case or controversy, then it isn’t. Any judge who rules otherwise is an “activist” who undermines the Constitution and oversteps the station of his office.

H.L.A. Hart later cashed-in on Justice Holmes’ jurisprudence in his book “The Concept of Law.” Echoing Thomas Hobbes’ “Leviathan,” Hart said the only legitimate government is a paternalistic government, and all rights have positivist origins. Courts should, according to Hart, leave the legislature free to order society. There can be no liberty, only ordered liberty, he says. Look at the Supreme Court’s 14^th Amendment jurisprudence today. The Court said, as early as 1937 and since, that a right is fundamental only if it is “implicit in the concept of ordered liberty.”[11]

So, today, if my individual right was violated and the violation can be traced to a particular defendant’s conduct (i.e. there is a case or controversy), do I have a right to petition the judiciary for redress of grievances? No. I have to navigate a complex web of statutes to determine my right of action, the cause of action, the available remedy, and the procedural route I must take to the court. Further, I am at a constant danger of being sued even if I didn’t violate anyone else’s right (i.e. there is no case or controversy) if some tree-hugging enviro-progressive decides that putting a new furnace in my Rocky Mountains cottage will make the indigenous skunks eat their young.

[1] Emphasis added.

[2] 5 U.S. (1 Cranch) 137, 163 (1803).

[3] Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

[4] Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895-96 (1984) (internal citations omitted).

[5] See Schweiker v. Chilicky, 487 U.S. 412 (1988).

[6] This is a very crude example, but I think it drives the point home.

[7] P.L. 79-404, 60 Stat. 238, codified under Title 5 of the United States Code.

[8] 5 U.S.C. § 706.

[9] For example, Justice Banjamin Cardozo, Justice Learned Hand.

[10] Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).

[11] Palko v. Connecticut, 302 U.S. 319 (1937).

The Right to Petition Government for Redress of Grievances, Part V

2010-11-02T08:57:00.000-07:00

Separation of powers. This first principle of constitutional jurisprudence is so revered that few stop to look at the silent change that has crept into the doctrine. The change is not the change of growth; it is the slow change of decaying flesh. Before writing this post, I did a very informal survey of people I knew and who were about to vote in the mid-term senate election. I asked them what separation of powers as a constitutional principle meant to them. Here are the two most revealing answers I got:

Separation of powers means you cannot act as a judge, jury, and prosecutor in your own case.
Separation of powers means mutual respect (or deference) of the three branches to one another.

There were other variants, but I single out these two answers because the first is totally wrong, and the second is shockingly preposterous. The first is a procedural guarantee in adjudicating disputes and has nothing to do with separation of powers. The second, though I must concede that this is what has become of the separation of powers principle today, is a complete reversal of what the principle stands for!

Separation of powers is so important a principle that the U.S. Constitution doesn’t mention it anywhere. The three words—separation of powers—are not found in the Constitution. Instead, we find this:

Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article II, Section 1: “The executive Power shall be vested in a President of the United States of America.”
Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The entire structure of the Constitution is said to be a monument to the separation of powers principle. The Drafting and Ratification debates invested considerable time in whetting this point out. The Federalist Papers made it explicit and presented arguments for why checks and balances are vital to prevent tyranny and protect the people against their government. The Anti-Federalist Papers argued at length about why the principle should be set in stone in the Constitution instead of keeping it unstated and implicit (which led to the adoption of the Bill of Rights). Justice Story’s Commentaries on the U.S. Constitution has lengthy passages on this structuralist origin of separation of powers. One can see the principle in action in every Supreme Court case. No wonder, this is the first principle that the 19^th century progressives attacked and mutilated beyond recognition.

Separation of powers ensures that each branch controls the other branch through a system of internal checks and balances. The power of one branch to check the other two branches was a power that couldn’t be reduced by any two branches acting in consort. Government was made deliberately inefficient to protect the people from governmental excesses. The three branches were deliberately set at the throats of each other to guarantee protection of individual rights.

The Supreme Court got an opportunity to make a definitive statement on the separation of powers principle quite early in its history. In 1793, President George Washington’s Secretary of State Thomas Jefferson asked the Supreme Court to advice the President on what American policy should be in the war between France and England. Chief Justice John Jay and other Supreme Court justices wrote back declining to advice the President, stating, “[The] three departments of the government . . . being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to.”[1] Thus were born two prudential standing doctrines: no advisory opinion, political question.

But of special note are what the justices said, and what the justices did not say. In the letter, the justices of the Supreme Court said the three departments act as “checks upon each other.” In declining to advice the President, however, the justices did not say what the “strong arguments against the propriety of our extra-judicially deciding the questions alluded to” are. Though this has been the subject of much speculation, the 19^th century progressives took this to mean that the checks don’t work against certain “core” functions of another branch. Foreign policy and war being such a core function, or so they assumed from the tenor of the letter, the judicial department can exercise no check on this executive function. It didn’t take long for this argument to morph into the argument that the judicial department cannot check the legislative function of legislating. If the legislature wishes to delegate its powers to administrative agencies, or if it takes categories of cases away from the federal courts, the judicial department cannot check this “core” power of the legislative branch.

Even in Marbury v. Madison,[2] the one ever-prominent apotheosis of judicial power, Justice Marshall, though he explicitly recognized and established the power of the judiciary to review acts of the executive (and issue writs of mandamus against the executive), announced that there are some political questions (i.e. some core functions) that were not reviewable by the federal courts. About 150 years later, the same issue—the possibility of executive non-compliance with judicial orders—came up in United States v. Nixon,[3] the Watergate tapes case. Indeed, a similar issue—the possibility of state executive non-compliance with federal judicial orders—had come up in Brown II.[4] But the idea planted by Justice John Jay and Justice Marshall became a virus in the hands of the progressives and gave rise to this whole idea of judicial deference. Out of fear that the other two branches will misbehave and disregard judicial opinions, the Supreme Court increasingly became more deferential to the executive and legislative departments. And this culminated into the ultimate abomination for jurisprudence: Carolene Products, footnote four.[5] Footnote four devolved into the strict scrutiny, intermediate scrutiny, and rational basis tests used for determining whether a legislative act is unconstitutional; it opened the door for socialist legislation to be held constitutional; it gave rise to procedural due process.

So, now, the Court gives deference to legislative findings of fact; the Court declares statutes as constitutional so long as the legislature gives some reason—any reason. Through the slow demise of substantive due process, and the rise of procedural due process, Congress can take away people’s rights so long as it follows the proper procedure. The Constitution, per Justice Holmes, is empty;[6] it recognizes no rights, it does not protect people’s rights against violators, and specially not against government. After all, separation of powers, the most revered first principle of the constitution, today declares that the Court cannot scrutinize how the other branches do their jobs; it cannot aggrandize itself by being so presumptuous as to begin to understand what motivates and animates legislative enactments. Doing so would be to encroach upon the other branches’ core functions.

So, today, the Court won’t issue advisory opinions, because the Court cannot tell another branch how to do their job and because doing so would show a lack of respect to other coordinate branches of government. The Court won’t hear generalized grievances, or where all taxpayers are affected—i.e. grievances that are so widespread that almost everyone in the country is affected. The Court won’t entertain political questions, because the issues are so hot button and so generalized that judicial resolution or intervention will deprive the legislature of the opportunity to decide them.

The separation of powers principles stands for checks and balances, not deference or timidity. Just as the Court should have the power to check the powers of the legislature and the executive, the legislature and the executive in turn have the power to check the powers of the judiciary. They can overturn Supreme Court constitutional precedent by amending the Constitution. The Eleventh Amendment did this. The Reconstruction Amendments did this. The Sixteenth Amendment did this. They can overturn Supreme Court statutory precedence by amending the statute. Judges can be impeached. In a confrontation between two branches, the third branch can break the tie. If all branches go down the wrong road, the people can rein in the government. For example, look at the Tea Parties.

“Checks and balances” ensures the government is controlled. But the separation of powers principle, as it stands today is just a backdoor, invisible to the public, but through which progressive agenda is peddled in the back alleys of Washington D.C.

[1] 6 Documentary History of the Supreme Court of the United States, 1789-1800, 743-58 (Maeva Marcus et al. eds., 1998). See also Richard H. Fallon, et al., The Federal Courts and the Federal System 66 (4^th ed. 1996).

[2] 5 U.S. (1 Cranch) 137 (1803).

[3] 418 U.S. 683 (1974).

[4] Brown v. Board of Education, 349 U.S. 294 (1955).

[5] United States v. Carolene Products Co., 304 U.S. 144 (1934).

[6] See Justice Holmes’ Lochner dissent.

The Right to Petition Government for Redress of Grievances, Part IV

2010-10-30T08:17:00.002-07:00

Under the American Constitution, to answer the question of how a person gets his foot inside the courthouse door, one has to look at the First Amendment that explicitly recognizes the right to petition government, and at Article III that authorizes federal courts to hear only cases and controversies. In Part III, I cursorily mentioned that even if the Constitution didn’t explicitly recognize the right to petition, the nature of government (which is defined by the conditions necessary for man’s survival) would dictate that there be a right to petition government for redressal of grievances. And, insofar as this right to petition the judiciary is concerned, the nature of the judicial department (vis-à-vis the nature of the legislative and executive departments) would dictate that one could get his foot inside the courthouse door only if there is an injury traceable to someone’s conduct.

If there is no injury to an individual right (for example, extinction of polar bears due to global warming), there is nothing with which to knock on the courthouse door. If the injury is not traceable to man’s conduct (for example, being stampeded by an elephant herd in a Thai jungle), i.e., if a person by his own misjudgment gets stampeded then the person has to face the consequences of his actions; no court can decree existence and causality to be otherwise. If the injury is not traceable to ascertained defendants (for example, someone enters your house while you aren’t home and burgles the place), there is no one to drag into court; the proper route is to petition the executive department to investigate who caused the injury.

My thesis is that no additional test should be required to get one’s foot inside the courthouse door, because any additional test would violate the right to petition.

But there are additional hurdles one has to cross today. A set of such hurdles are called “prudential standing doctrines.” Prudential standing doctrines are a set of “self-imposed” limits by which courts prevent plaintiffs from filing petitions to seek redressal of grievances. Here’s a list of prudential standing doctrines, and we’ll examine each of them in turn:

· No advisory opinion

· No generalized grievance

· No third party standing

· No taxpayer standing (with very few exceptions)

· Limited standing for organizations

· Zone of interest

· Ripeness

· Mootness

· Political question

Whatever be the justifications offered for any particular prudential standing doctrine, all can be distilled into four broad rationales:

Separation of powers (one branch cannot do the job of another branch, or tell another branch how to do its job; avoid self-aggrandizement and encroachment),
Case or controversy (Article III authorizes the federal courts to adjudicate only actual cases and controversies between opposing parties),
Conservation of judicial resources (prevent a flood of lawsuits, and conserve the court’s “political capital”), and
Fairness (being fair to the plaintiff, the defendant, and the government).

So, in the forthcoming discussion on each of the prudential standing doctrines, keep in mind these four rationales.

The Right to Petition Government for Redress of Grievances, Part III

2010-10-26T13:00:00.000-07:00

In Part II, I stated that Constitutional standing should require only injury and causation for a plaintiff to get a foot inside the courthouse door. I did not explain why injury and causation should be required under the right to petition the judiciary while seeking redressal of grievances. That’s what I’ll do here.

I am assuming everyone is familiar with the idea of positive and negative rights. Positive rights are not divine or congressional law but conditions necessary for man’s survival as man. Just as an individual’s own life is the standard of morality, positive rights are a green light for man to do everything to make such survival possible. Thus, the right to life recognizes an individual’s own life as the standard of value; the right of liberty recognizes man’s right to use his own mind; the right to property recognizes man’s right to retain the fruits of his independent thought; the right to the pursuit of happiness recognizes that the purpose or goal of morality (and a moral society) is furtherance of these positive rights. Negative rights, on the other hand, mean that man must be left free from coercion. An individual, in exercising his positive rights, must not initiate force against another. Non-interference, and non-initiation of force, therefore, are the two negatives, the two red lights that make possible man’s survival qua man.

Government has a monopoly on force and is delegated the power to use force in retaliation against those who initiate its use. Government’s only function is to secure individual rights.[1] Because individuals delegate the function of securing rights to an entity in order to put the retaliatory use of force under objective control, it gives rise to an individual-government relationship. Just as one appoints an entity to keep one’s money safe (a bank), and in doing so, a unique banker-depositor relationship is formed; in delegating the function of securing rights to an entity (government), an individual-government relationship is formed. And the right to petition addresses one of the conditions under which this individual-government relationship is to continue. Because it is the government’s job to secure individual rights, whenever an individual’s rights are violated, an individual has a right to complain, a right to bring to the notice of the government how the rights were violated or who violated them.

Violation of a right, or “injury” as it is called, is, therefore, the starting point in exercising the right to petition. The injury requirement is underscored by the fact that it is a right to petition government for a redress of grievances. A grievance is an injury, a violation of a right, an initiation of force. Assuming the person knows only that his right was violated, but does not know by whom, he still has the right to petition government (but this time, the police, i.e. the executive department) and it is then government’s job to find out who violated the complainant’s right. For example, in cases of robbery, one may not know who violated the right, but still has a right to complain to the police so that the police can find out who the initiator of force was. The police investigate without deciding just deserts.

To petition the judicial department, however, the complainant needs to know who the initiator of force is. The courts do not investigate, they decide just deserts depending on the right and the magnitude of violation involved. Causation, or more technically, the fact that the injury is traceable to a certain defendant’s conduct, should, therefore, be known before exercising the right to petition the judicial department.

It is in the nature of the right to petition, as one of the rights involved in dealing with the government, to require injury and causation when this right is exercised in a court. As a side note, there are other rights involved in dealing with the government besides the right to petition: right to vote, right to require that the government act according to its fundamental charter, right to equal protection of the laws (to prevent government from initiating force, or the non-initiation principle applied to government). The non-interference principle is applied to government via the Due Process of Law clause, i.e., via what is called Substantive Due Process.

In Part IV, I will discuss some additional (unwarranted) limits on the right to petition the judicial department.

[1] I am assuming familiarity with Ayn Rand’s essays “Man’s Rights” and “Nature of Government.”

The Right to Petition Government for Redress of Grievances, Part II

2010-10-17T15:49:00.001-07:00

In the previous post, I left off stating that there are Constitutional, self-imposed, and legislature-executive-imposed limits on the right to petition the judicial branch. But before we look at these limits, here are my initial thoughts on what it means to have a right to petition.

I think the right to petition a court is a question of whether a person can get his foot inside the courthouse door. So, every legal construct or doctrine that affects the answer to this question should be examined. If the answer to this questions is “yes, so long as the plaintiff alleges an injury caused by the defendant,” then any additional hurdle will violate the right. Note that court access is different from actually getting your grievance redressed. There is no right to redressal of grievances, only a right to seek redressal of grievances; just as there is no right to happiness, but a right to the pursuit of happiness; no right to employment, but the right to be left free to seek employment; no right to livelihood, but the right to be left free to seek livelihood.

Can I get my foot inside the courthouse door if a defendant injured me? Today, the answer is, “it depends.” It depends on additional hurdles a plaintiff has to cross before he can get to the door. What are these hurdles? Are these hurdles justified?

Does the Constitution require any limits? Yes, the Article III case or controversy requirement that establishes an adversarial system of judicial decisionmaking. And this requirement is no different from what the right to petition requires: a plaintiff alleging injury caused by the defendant. The Supreme Court, in addition to injury and causation, has added a third requirement, likelihood of redressability, and called the three requirements “Constitutional standing” requirements. In Lujan v. Defenders of Wildlife, the majority explained,

“Irreducible constitutional minimum of standing requires that plaintiff have suffered an injury in fact, which is an invasion of a legally protected interest which is concrete and particularized and actual or imminent rather than conjectural or hypothetical; that there be a causal connection between the injury and conduct complained of so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court; and that it be likely, as opposed to merely speculative, that injury will be redressed by a favorable decision.”[1]

A plaintiff has to allege actual and concrete injury that is fairly traceable to defendant’s conduct and that redress of the grievance will likely follow from a favorable decision. I have no qualms with the first two requirements, but I take issue with requiring a showing of redressability.

The Lujan Court recognized the conceptual similarities between pleading and standing. Decades ago, under the writ system of pleading, form was elevated over substance. If one didn’t file the proper writ, the case was thrown out notwithstanding an actual injury caused by the defendant. Further, many times res judicata (dismissal with prejudice) prevented a person from filing again with the proper form. Law courts couldn’t give equitable relief; courts of equity couldn’t give legal relief. Requesting one type of relief and not another prevented you from seeking alternative forms of relief. Federal Rules of Civil Procedure changed all that. Now we need only a short, plain statement of facts, allegations, and requested relief.[2] Justice O’Connor, writing for the majority, explained in Allen v. Wright that, “Standing requirement has a core component derived directly from the Constitution in that a plaintiff must allege personal injury fairly traceable to defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.”[3] When I read that, I ask myself, how then is redressability any different from availability of the requested remedy? With the merger of law and equity, courts are free to give relief and fashion remedies that are commensurate with the injury. If redressability is no different from availability of the requested remedy, then does that mean non-availability of the requested remedy precludes the court from fashioning a different remedy, and thus, also precludes the court from allowing the plaintiff to get inside the courthouse door? It amounts to saying, “Oops, plaintiff, you requested the wrong remedy. Out you go.” This sounds awfully as a hangover from the writ system past where courts said a similar thing: “Oops, plaintiff, you used the yellow form instead of the blue one. Out you go.”

The Constitutional standing test should only determine whether a person can get his foot inside the courthouse door. It should not be an evaluation of the merits of the case. It should not determine whether plaintiff has sufficient evidence to support all of his allegations, before the plaintiff has in fact presented such evidence. It should not determine whether the requested remedy is or is not commensurate with the allegations. That determination depends on the principle of just deserts which can come only at the conclusion of evidentiary proof, not at its beginning. Constitutional standing should only determine that, given the allegation, is it traceable to defendant’s action or inaction. If it is, then it should allow the plaintiff to go forward with proving his allegations, and then give an appropriate remedy.

So, to conclude, the injury and causation requirements are justified, but the redressability requirement is not. There are other restrictions that prevent plaintiffs from getting their foot inside the courthouse door on which I will elaborate in my future posts. Remember that this is a work-in-progress thesis. Feel free to comment and play devil’s advocate. I’d really appreciate that.

[1] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted).

[2] Fed. R. Civ. Proc. 8.

[3] Allen v. Wright, 468 U.S. 737, 751 (1984).

The Right to Petition Government for Redress of Grievances, Part I

2010-10-15T12:12:00.000-07:00

Two years ago, my friends and I were quizzing each other before our Constitutional Law exam. We had an empty beer bottle between us that we were spinning to quiz each other. The one who got the base asked a question to the one getting the mouth of the bottle. A friend asked, “What are the five basic freedoms guaranteed by the First Amendment?” Though we were all law students, my friend could name only three of the five freedoms guaranteed by the First Amendment. While all of us were scrambling to open our pocket Constitutions to find the right answer, a thought crossed my mind. If this is the plight of law students, how many Americans actually know the contents of the First Amendment? The answer didn’t take long to find. A trusted Google search brought to my attention a survey conducted in March 2006.[1] I’ll let the survey speak for itself, but here are the highlights:

69% could identify “freedom of speech.”
24% could identify “freedom of religion.”
11% could identify “freedom of the press.”
10% could identify “freedom of assembly.”
1% could identify “freedom to petition [government] for redress of grievances.”

Though an astounding 76% couldn’t identify freedom of religion, what I want to focus in this article is on the 99% that don’t know there is a right to petition government for redress of grievances.

The First Amendment states:

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.

And, it is right there, in plain sight: “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.” The First Amendment does not say the people have a right to petition the legislature, or the right to petition the executive; it says the people have a right to petition the government for a redress of grievances. Nothing could be plainer. Government with a capital G, as if highlighted with a powerful floodlight. There are three branches of government: the legislative branch, the executive branch, and the judicial branch. So, it should logically follow that a person has a right to petition any of these three branches, right?

Wrong. Very few even bother to think of the Right to Petition clause. I looked at many Constitutional Law texts and treatises[2] and found no exposition on the subject. The closest all these texts come to the concept is a section styled “access to courts” guaranteed by the Equal Protection and “Procedural” Due Process clauses of the Fourteenth Amendment. But this discussion quickly devolves into the question of whether requiring court filing fees violates the Fourteenth Amendment. The Right to Petition clause remains obscure and forgotten. Yet, wars have been fought and revolutions triggered to secure the right to petition government for redress of grievances. The Magna Carta, and the war that led to its signing, secured the right to petition the King for redress of grievances. The English Bill of Rights of 1689 secured the right to petition. The American Declaration of Independence enumerates how, in spite of repeated petitions to England, the Americans’ basic freedoms were violated; how, because Americans’ petitions were answered with still greater injury, it was right for America to separate from England.[3]

So, where does the Right to Petition jurisprudence stand today? What should it be? These are the questions I’ll try to answer.

While the most problematic application of the right to petition is with respect to the judiciary, the right to petition as regards the executive and legislative branches has its own nuances. I am, however, focusing only on the former in this article.

As regards to the latter, let me just say this: Petitioning the legislature is often called “lobbying.” And so is petitioning the executive branch (including administrative agencies). When limits on the legislative power were interpreted out of the Constitution, and the role of the legislature came to be construed as unlimited majority rule rubber-stamped by the Courts via rational basis and judicial deference, and purportedly justified through rationales such as police powers and public interest, the right to petition the legislature became more controversial over the years, and rightly so. But this is not the focus of my article today. I will tackle lobbying separately.

As regards the right to petition the judicial branch, the reasoning should be straightforward: if there is a grievance (an injury), caused by the person sued, a court should take the case and try to redress the grievance. But this is not how it works. There are Constitutional and self-imposed limits that prevent courts from taking up cases. There are also legislature-executive imposed limits that prevent persons from knocking the courthouse door to seek redressal of their grievances.

What are these limits? Are these limits justified? I’ll answer these questions in Parts II and III.

[1] Robert Longley, Americans Know Their Simpsons but Not Their Rights, available at http:// http://usgovinfo.about.com/b/2006/03/03/five-freedoms-americans-know-simpsons-better-than-their-rights.htm (last visited October 14, 2010).

[2] Erwin Chemerinsky, Constitutional Law (Aspen 2005); Randy Barnett, Constitutional Law: Cases in Context (Aspen 2008); Paul Brest et al., Process of Constitutional Decisionmaking: Cases and Materials (Aspen 2006); Kathleen M. Sullivan & Gerald Gunther, Constitutional Law, 16th Ed. (Foundation Press 2007); William Cohen, Jonathan D. Varat & Vikram Amar, Constitutional Law: Cases and Materials, 12th Ed. (University Casebook Series 2005); William Cohen, David J. Danelski & David A. Yalof, Constitutional Law: Civil Liberty and Individual Rights, 6th Ed. (Foundation Press 2007); Ronald D. Rotunda, Modern Constitutional Law: Cases and Notes, 8th Ed. (American Casebook Series 2007); Geoffrey Stone, Mark Tushnet, Louis Siedman, Cass Sunstein, Constitutional Law (Aspen 2009); and many others.

[3] “In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.” Declaration of Independence ¶ 30.

Purpose of My Blog

2010-10-14T11:15:00.000-07:00

I intend to "blog" on legal topics. These are really snippets of article-length writings, or posts on topics I would like to develop into law review length articles. So, expect lengthier posts, often more then 1,200 words long. Since the posts will be longer, the posts will be farther apart in time. My target, however, is to have one post every week.

I am doing this to get feedback from my friends and acquaintances. So, please take the time to read and comment. But also, please do remember that this is a private, moderated forum for the exchange of ideas.

My first topic, the whole or a part of which should be up by this weekend, is on the right to petition government for a redress of grievances. Happy reading!