Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government

Among the most remarkable and least understood provisions of the First Amendment, the Petition Clause guarantees the "right of the people.., to petition the Government for a redress of grievances.” This Article reads the Petition Clause as a guaranteed right to pursue judicial remedies for unlawful government conduct. The Clause’s affirmation of government accountability to the people operates as a constitutional antidote to the familiar doctrine of sovereign immunity, a judge-made doctrine that lacks any textual foundation in the Constitution and blocks federal courts from entertaining claims against the United States government in the absence of a clear legislative statement. The Article first derives a principle of government accountability from the text and history of the Petition Clause and its provision for proceedings before all three branches of the federal government.  Then the Article explores the law of government accountability, describing the many ways in which it already recognizes an assurance of remediation and the many ways in which it might evolve to more broadly align with the aspirations of the Petition Clause.