Did the Golden Age of Petitioning Improve Democracy?

Guest Blogger

For the Balkinization symposium on Daniel Carpenter, Democracy by Petition: Popular Politics in Transformation, 1790–1870 (Harvard University Press, 2021).

Robert L. Tsai

Daniel Carpenter’s masterful book, Democracy by Petition, explores how the right of petition evolved from a “humble approach on bended knee to a ruler” in earlier periods into a “modern technology of text and testimony” in the 19^th Century. It is an account that spans the North American continent and the West Indies, and captures the capaciousness and vitality of the instrument, particularly as it became broadly used by marginalized groups. From the early pages of the book where the Innu petitioned the Canadian government for land and fishing rights, to women’s rights advocates in Jefferson County, NY, who petitioned for sex equality two years before Seneca Falls, Carpenter demonstrates how regular people asserted rights and publicly demanded satisfaction.

Carpenter’s account will surely be treated as the authoritative account on the subject, surpassing past treatments due to its historical sweep, the sheer breadth of the individuals and groups who turned to this cherished “template for action,” and the prodigious amount of research and analysis he brings to bear upon the subject. I wish to drill down briefly into a few of Carpenter’s insights to highlight the most illuminating and provocative ones: in particular, those of a causal nature, his generally optimistic view of the right to petition, and his move to disaggregate the possible functions of a petition.

First, whereas many previous accounts have been more tepid in making causal claims, Carpenter makes several such bold assertions: the right to petition didn’t just convey grievances but also “induced citizens to organize their claims”; “left organizational legacies,” including the “building blocks of new political parties”; shaped how presidents thought about key issues including potential solutions to slavery; and “figured centrally” in “nearly every dimension of democracy’s development.”

As some evidence that petitioning affected legislative debate, Carpenter shows us how state legislators, and even the U.S. Congress, for a time treated petitions seriously, including by reading them aloud during legislative session and developing protocols for referring petitions for consideration by committees. Impressively, Carpenter notes that more than half of bills passed by Virginia’s House of Burgesses during the 1700s began as petitions. I may have missed it, but see less evidence for Carpenter’s claim that petitioning had a significant impact on the trajectory of the development of political parties.

This leads to a second aspect of Carpenter’s portrayal of petition’s development as improving democracy. It is a very optimistic portrait—perhaps overly so. Has the practice of petitioning in fact been a net positive for democracy?

Based on the evidence in his book, there is another, darker (or perhaps more balanced) perspective. The noticeable increase of popular resort to petitions is certainly worthy of investigation, for such texts reveal what Judith Shklar describes as the victims’ “sense of injustice.” They offer us clues as to why oppressed groups feel especially aggrieved, the harms associated with their outrage, the legal sources for the group’s claims, and sometimes tantalizing, partial evidence of why the powerful have ignored such pleas. The actual social practice of petitioning also helps to identify existing imbalances in political power. But by themselves, petitions tell us very little about the actual state of democracy itself in terms of how open, inclusive, or effective it is.

Instead of evidence that democracy is growing, the opposite might be true: an uptick in usage of petitions may indicate rising demands for participatory rights because the political system has gotten better at shutting out a group in important ways or running roughshod over their interests (e.g., by denying the vote or legal status, reparations, land or other property rights, the ability to make a living). If so, the increased usage of petitions is a sign of desperation. In that sense, more demands that democracy’s terms be expanded may only tell us where the system’s vulnerabilities are, along with a little bit about the methods by which the already powerful retain influence.

Carpenter contends that the practice of petitioning made certain civic spaces “more egalitarian.” But did the associations and other democratic spaces become more equal in a substantive sense or merely more pluralistic? There are other reasons to wonder about the limits of true participation or effectiveness of these instruments: Petitions were often relied upon opportunistically by elites during legislative debate to score points against one another. Additionally, as Carpenter acknowledges, while the number of signatories to petitions multiplied, it also meant that people who could neither read nor write had their names added—which gives rise to the possibility of manipulation by activists. This raises the prospect that petitioning at some point can be captured by elite interests and goals.

To his credit, Carpenter acknowledges that those who were already powerful resorted to petitions to influence public debate—sometimes for illiberal ends. Slave masters sent petitions to elected officials, as did settlers who sought forceful action against Indian nations and white citizens who demanded restrictions on the rights of religious or racial minorities. The same underlying political dynamics that made some people’s interests more likely to be acted upon presumably worked in similar ways when it came to petitions.

If in fact petitions became associated with a more unruly form of politics out of doors, it helps explain why those in power began to ignore petitions, initially by creating selective, substance-based exceptions to the presumption that Carpenter identifies—“the expectation of a response”—such as when it came to the subject of slavery. But then at some point, the petition itself arguably became too closely associated with voices from whom the powerful no longer were interested in hearing.

All of this brings us to a third observation, which flows from Carpenter’s ingenious decision to disaggregate the various possible functions that a petition might serve. For instance, he suggests variously that a petition could serve a communicative function (by publicizing grievances), a formal lawmaking function (as a first draft of legislation), a coordinating function (by bringing people together), a deliberative function (via agenda-setting), an institution-building function (by leading to new processes or social organizations), and so on. Carpenter’s move to separate function from form is fascinating, and I think generative. It suggests that with a given petition, or even with regard to a particular petitioning campaign, we might be able to say that the act of petitioning serve some functions well and others less so. Given the historical sweep of the book he is not able to do this analysis systematically, but his approach offers a template for others.

This move may be a partial response to criticisms that a petition itself doesn’t do much of anything. Carpenter’s probable reply is that it depends on what effects we are interested in. I made a similar observation involving post-1787 constitution-writing experiments in the United States, even those that didn’t end in formal approval and implementation. If Carpenter is right that a lot of people authored petitions even if they couldn’t realistically expect immediate satisfaction, and others wrote declarations of independence and constitutions when the odds of approval were slim to none, then it may be the case that petitioning and constitution-writing converge for some groups when the desire to communicate and coordinate are more important than other functions (e.g., actual governance, shaping legislation, controlling territory lawfully).

Carpenter doesn’t tell us the rest of the story of why the right to petition became untethered from formal legislative processes, treated as duplicative in jurisprudence, or why the expectation of a response withered over time. He ends his book after a rousing account of petition battles over how to deal with the slaveholding states that seceded from the Union and the petitions of black soldiers and their allies who pray “to be placed on the same footing, as to pay and privileges, as white soldiers.” One hopes there is more come. 

Robert L. Tsai is Professor of Law & Law Alumni Scholar at Boston University Law School. You can reach him by e-mail at rltsai@bu.edu.