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Hastings Constitutional Law Quarterly

Abstract

The First Amendment right to petition government has been improperly limited by the United States Supreme Court. While the Court has agreed that the Petition Clause extends to the judiciary, it has improperly concluded that the Petition Clause does not provide a substantive right of access to the judiciary. Instead, the Court has granted only limited immunity to petitioners and has concluded that, whatever the breadth of the Petition Clause, there is no correlative duty of governmental response. The Court's interpretation ignores the historical understanding of this right. From its inception in England and throughout the colonial era, the right to petition government encompassed both individual and collective written requests to the executive, judicial, or legislative authorities. The debates surrounding the framing of the Petition Clause do not indicate that the original understanding was any different from colonial practice. In light of the historical understanding of the Petition Clause, the constitutional basis of Rule 11 of the Federal Rules of Civil Procedure and the "sham" exception to the Noerr-Pennington Doctrine need to be reexamined.

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