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Vanderbilt Law Review

Authors

Kara E. Shea

First Page

1697

Abstract

If the "person on the street" were asked to name a right guar- anteed to all Americans by the First Amendment of the United States Constitution, freedom of speech would likely come quickly to mind, along with the concomitant right of free press. The rights to practice one's religion and peaceably assemble, even the judicially created right of free association might follow closely behind. Few people, how- ever, would mention the "right of the people.., to petition the government for redress of grievances."' Fewer still would be able to give a good definition of petitioning, or to describe the types of activities protected by the right. One obvious reason for the general lack of awareness of the existence and contours of the petition right is the almost total absence of judicial scrutiny directed at the Petition Clause in the years since the Framers included it in the First Amendment as a separate textual guarantee. This judicial "silent treatment" stands in stark contrast to the eager and exacting scrutiny applied to the other First Amendment guarantees such as free speech, press, and religion. The substance and scope of these rights have been alternately reduced and expanded over time as the rights themselves are continuously redefined by the courts to fit the sensibilities of each generation. The petition right, deprived of the nuance and repetition-engendered familiarity provided by this sort of natural, ongoing evolution, arrives into the late twentieth century somewhat awkwardly, a little-understood visitor from another age.

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