Petitioning and Procedural Democracy

Guest Blogger

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

Julie C. Suk

Professor of Law, Fordham University School of Law

Daniel Carpenter’s Democracy by Petition displaces voting and the electoral systems that legitimize representative government from their central place in the story of American democracy. It shows how the struggle for democratization and formal inclusion in rights to suffrage, property, labor, and equal protection of the laws “depended as much on petitioning campaigns” (xii) as on voting, political parties, and other features of representative democracy. It is not by voting for political leaders, but by speaking directly to them through petitions, often by which the people (often those excluded from voting) commanded the attention of lawmaking bodies, inserted themselves into lawmaking spaces and processes, and  shaped the sympathies, agendas, and legitimacy of lawmakers and voters over time. Democracy by Petition reveals the power of direct democracy as an engine of American constitutional change towards greater inclusion, even as the textual markers of constitutional inclusion — the Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments —make explicit mention of the right to vote.

The Constitution may protect the right of the people to petition the government for redress of grievances, but petitioning is perhaps the most forgotten constitutional right. It was the only First Amendment right that now-Justice Amy Coney Barrett couldn’t name (after religion, speech, press, and assembly) during her 2020 Supreme Court confirmation hearings. Carpenter shows how the politics of the century that followed the adoption of the Bill of Rights was significantly shaped by people petitioning legislatures at the local, state, and federal level throughout North America. Whereas the right to vote belonged only to some citizens, petitioning was never assumed to carry eligibility requirements. Carpenter’s beautifully narrated stories of petitioning campaigns illustrate how many people who were excluded from voting inserted themselves the into lawmaking processes, shoring up legitimacy in numbers. Without being formally empowered to share in sovereignty through the vote or eligibility to hold office, they actively and directly proposed change, instead of ratifying it indirectly by voting for the representatives who acted or failed to act.

Petitioning, more so than voting, could set democratic agendas, especially when the petition carried the legitimacy of thousands of signatures. When enslaved Africans petitioned for their freedom, and women petitioned for the vote and other legal rights, they brought these demands directly to the attention of legislative committees. This is what Carpenter calls procedural democracy: “the ability of the people (and the myriad sub populations that compose it) to place issues of importance on the calendar of the government for deliberation and possible action.” (43). This democracy is “procedural” in the sense that it is not ultimately concerned with “equality of final decisions,” but rather, the “equality of participation in lawmaking” and “equality in access to public forums.” (43). Lawmakers responded to petitions by holding committee hearings, which advanced a democratic dialogue about the proposal. This history invites us to measure democracy by the degree to which its agenda-setting process was participatory and representative of large numbers of people, rather than the degree to which its outcomes reflected voters’ aggregated preferences.

The power and pitfalls of procedural democracy are well-illustrated in Chapter Ten, which shows how petitioning by abolitionists transformed American politics. Women abolitionists like Angelina Grimké regarded petitioning as disfranchised women’s only way of reaching lawmakers; women signed abolitionist petitions at higher rates than men did. Women canvassed by foot to collect voluminous signatures. This volume not only communicated the quantity of support to the legislature; the process of obtaining so many signatures simultaneously recruited new members to anti-slavery organizations and mobilized agitators of antislavery movements. When the Massachusetts General Court received Grimké’s petition with 20,000 signatures, it invited her to present the petition, thereby creating the occasion for the first address by a woman before a state or national legislature in the United States, in 1838, which were then published in The Liberator. Such processes normalized the participation of women in legislative discourse, not as merely individuals, but as representatives of a petition backed by aggregated support. Yet, Carpenter also notes how the rise of women in the abolitionist organizations divided the movement, leading to a mass walkout and significant resistance to the coupling of anti-slavery and women’s rights causes.

Similarly, petitioning enabled the mass mobilization of Black people during this period in the North. A petition by 40,000 Black people in Pennsylvania attempted to stop a proposal to insert the word “white” into Pennsylvania’s constitutional provision on voting rights. This episode may have been a triumph for “procedural democracy,” but Carpenter observes that “the forces of despotism won”: By an extremely narrow majority, 113,971 to 112,759, the constitutional proposal to disfranchise Blacks prevailed, and Philadelphia’s free Black community became the target of anti-abolitionist and racist violence. Petitioning enabled them to set the agenda, but this “procedural democracy” triggered a crude majoritarian backlash that became constitutionally entrenched. Chapter 14 recounts the “closure of petition democracy” in the U.S. South in the lead up to the Civil War.  As petitions to legislatures introduced, and eventually normalized, the participation of people who were excluded from voting and officeholding in hearings and other processes of lawmaking, the growing power of petitions also triggered counter-mobilizations to resist the perceived threat of empowering the disfranchised.

If petitioning is a path that is sought because the vote is not available, what paths remain when petition democracy closes down? Carpenter acknowledges a dynamic between legislative petitioning and another path of petitioning government for redress of grievances: lawsuits seeking remedies from courts. The opening chapter of Democracy by Petition quotes at length from the enslaved Harriet Scott’s petition for freedom as a signature moment in the opening chapter of his book. But her petition, and that of her more well-known husband, Dred Scott, were petitions to a court that “qualified as legal instruments” (13). Their petitions, and hundreds of freedom suits that were brought with some success in state courts in antebellum Missouri, “aimed to launch a court-based procedure of adjudication rather than a sequence of lawmaking.” (13). The court-based procedure of adjudication, in a system of precedent, had established the legal rule that Scotts now petitioned to enforce, namely that enslaved persons who were emancipated in free territories would remain free, even upon their return to slaveholding states. Petitioning courts with the power to issue remedies such as injunctions and declaratory judgments also set agendas and triggered sequences of lawmaking by courts, as well as backlash. Future explorations of petitioning in America would benefit from greater attention to the dynamics between petitions to courts seeking equitable remedies like injunctions and petitions to legislatures seeking statutory change.

Petitioning was not only an alternative path to voting; it was also a response to the inadequacy of courts. In his chapter focused on women petitioning for their rights, Carpenter points out that “[p]erhaps more than any other institution of American public life, county and state courts cemented the subservience of women – in North and South, in city and hamlet.” The turn to petitioning before legislatures, he suggests, was in part a reaction against the “steady erosion of women’s rights in the court system.” (346).  At the same time, Carpenter notes that the ability to shape agendas through legislative petitioning “did not translate into immediate legal changes” (383) either. While Carpenter’s history of petitioning is thorough and mesmerizing, perhaps future scholarly inquiries into democratization by petitioning would benefit from comparing courts and legislatures as sites of procedural democracy. Due largely to the dynamics of mobilization and counter-mobilization, petitions have been effective as agenda-setting catalysts in courts at some historical moments and in legislatures in others. Carpenter later observes, “The rise of cultural and institutional apartheid in the Jim Crow South came (and did not merely coincide) with a steep drop in popular petitioning, and democracy in all its dimensions suffered.” (480). But the century that followed the one in Democracy by Petition could perhaps be called “Democracy by Litigation,” as African Americans and women continued their pursuit of full inclusion in civil rights through litigation, often aggregate forms of public-law litigation that bloomed in the twentieth century, supported by social movement mobilization.

Carpenter’s broad-ranging history shows that, when voting and electoral politics were out of reach, people grasped for tools of direct democracy. Even if petitions did not succeed in persuading legislatures to meet petitioners’ demands, the processes of canvassing, mobilizing, and participating within spaces of decisionmaking power enabled petition-makers to become active agents of procedural democracy. Today, efforts to save American democracy focus on voting rights and electoral districts (often through litigation), to the neglect of other, more promising avenues by which the people might collectively set agendas and catalyze change. Democracy by Petition is a reminder that the major transformations of American democracy have depended on popular politics that extended well beyond getting out the vote. 

Julie C. Suk is Professor of Law at Fordham University School of Law. You can reach her by e-mail at jsuk4@fordham.edu.