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We The
People Foundation
Analysis of The District Court’s Decision
We The People v. United States
U.S.D.C. for the District of Columbia Case No. 04-01211 U.S. Court of Appeals for the District of Columbia Circuit Case No. 05-5395
In dismissing We The People, Judge Sullivan of the DC District Court
stated, “The Supreme Court has held that the First Amendment does not impose
any affirmative obligation to listen, to respond, or in this context, to
recognize the association and bargain with it. See Smith v. Ark. State
Highway Employees, Local 1315, 441 U.S. 463 (1979). Plaintiffs’ claims
that defendants are obligated to properly respond to plaintiffs petitions
shall thus be dismissed for failure to state a claim upon which relief can
be granted.”
This is
obviously an appealable decision, and, I believe, we are well served by the
narrow issue upon which the dismissal was based.
The
Smith case is not on point, much less dispositive.
The facts
and circumstances in Smith are entirely different from those in We
The People Our case does not deal with public employees and
whether a public employer has to listen or respond to job related grievances
presented to the employer by an unofficial association representing those
public employees.
We The
People
seeks a determination of the Right of individual citizens, when faced
with evidence that their government is acting outside the boundaries drawn
around its power by the Constitution, to use the Petition Clause to hold the
Executive and Legislative branches of the federal government directly
accountable -- to the already adopted, bedrock and inviolate fundamental
Rules of governmental conduct set forth in the federal Constitution:
the war powers clauses, the tax clauses, the money and debt-limiting clauses
and the “privacy” clauses.
Smith
deals with public policymaking (labor relations) by units of local and state
government -- the adoption of public acts, statutes, general laws,
regulations, resolutions, ordinances and the like -- rules designed and
adopted by government to govern the conduct of People (i.e.,
public, government employees and administrators) – and whether the proper
state machinery and constitutional safeguards (such as due process, and free
speech) were being breached, either in the adoption of the rule or in its
application.
In
Smith, the controversy was between a unit of State government (Arkansas
State Highway Commission) that adopted a rule by which it would only address
individual grievances that were initiated by individual public employees
rather than by the employee’s union, and the public employee union that
claimed that the public employer’s grievance procedure violated the
First Amendment. The Court held that, “the First Amendment protects the
right of an individual to speak freely, to advocate ideas, to associate with
others, and to petition his government for redress of grievances. And it
protects the right of associations to engage in advocacy on behalf of its
members…the First Amendment is not a substitute for the national labor
relations laws … all that the Commission has done in its challenged conduct
is simply to ignore the union. That it is free to do… the First Amendment
does not impose any affirmative obligation on the government to listen, to
respond or, in this context to recognize the association and bargain with
it.”
Clearly,
the facts and circumstances of Smith are differentiated from the
facts and circumstances in We The People, which goes to
Constitutional torts by the government and the People’s ability to hold
government accountable to the Constitution – that is, the People’s ability
to self-govern.
In
Smith, the claim was NOT about the People’s ability to defend, protect,
preserve and enhance their fundamental Rights by using the Petition Clause
to hold the government accountable to public “policies” as already adopted
and expressed in the Constitution. Smith was a controversy dealing
with (public) institutional policymaking, and specifically to collective
bargaining between public employees and public employers -- negotiations
between state highway workers and the State employer, and about
employment-related issues.
In
Smith, the controversy was between a unit of State government who, in
implementing a properly adopted state statute designed to govern collective
bargaining between the public employer and public employees on issues
related to employment, did not authorize the State to recognize the highway
workers’ association. The association argued that its First Amendment Rights
of speech, petition and association were being violated. The court held that
the association had no right as an unofficial collective bargaining unit to
a government audience for their policy views.
The
difficult task of giving shape to the First Amendment Rights to Petition and
of assessing the state interests that might justify its abridgment was not
settled in Smith, but was “left to another day” because the proofs in
the case did not establish the kind of impairment of the ability of state
highway workers to communicate with administrators that would give rise to
constitutional difficulty.
The power
of the Executive and Legislative branches has become too “remote.” The First
Amendment guarantees, and the circumstances of our case warrant the
restoration of the “forgotten Right” – the restoration of the Right on the
part of individuals to present their grievances and prayers for relief to
the government decision makers, and to obtain responsive answers, as an
alternative check on the choices made.
The
factual background of our case raises these constitutional issues in a
manner not heretofore passed on by the courts. If new constitutional ground
must be broken in reaffirming this Nation’s dedication to safeguarding the
Rights of individuals, as opposed to the desires of the majority, then let
it be.
Under the
Constitution, Petitioning for Redress is not a Right that is given only to
be so circumscribed that it exits in principle but not in fact. Freedom of
Petitioning for Redress would not truly exist if the Right could be
exercised only in an area that a benevolent government has provided as a
safe haven for “protestors and crackpots.” The Right to Petition the
Government for Redress of Grievances is nothing short of the capstone
Right. Indeed, the Right is the essence of popular sovereignty and the tool
by which sovereignty over servant governments is practically exercised. For
instance, the exercise of the Right to Petition is not to be confined to, or
subsumed by, freedom of expression.
In order
for the government to justify its failure to respond, it must be able to
show that its non-responsiveness was caused by something more than a mere
desire to avoid discomfort, unpleasantness or practical difficulty. There
must be a clear and present danger to the government for the government to
trespass on the First Amendment – and even then only if such danger arises
from the proper and legitimate purposes and acts of government.
To repeat, we are asking the Courts if the Right to Petition the Government
for Redress of Grievances means: a) that the People have the Right to submit
a statement of grievances and a prayer for relief when suffering
constitutional torts; b) that the government has an obligation to
respond; and c) that if the government refuses to respond the People
have the Right to retain their money until their grievances are redressed.
After
first ruling that under the First Amendment, the government does not
have to listen or respond to Petitions for Redress of Grievances from the
People, the DC court then said that the People do not “have a First
Amendment right to withhold money owed to the government and to avoid
governmental enforcement actions because they object to government policy.”
We have
appealed from the District Court’s decision. The matter is now before the
Court of Appeals for the
District of Columbia.
Case 05-5395.
Last week
we responded to an Order of the Court for preliminary matters regarding the
appeal. The Court asked us for a statement of the Issue to decided by the
Court. In response, we said the issue to be decided is: Whether government defendants are obligated under the Constitution to respond with specific, official answers to the questions put forth by Plaintiffs in their Petitions for Redress of Grievances, and whether the People may retain their money without retaliation by the Defendants, until their grievances are redressed.
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