“#DearBetsy,” tweeted civil rights activist Alexandra Brodsky on July 6, 2017, “Rescinding Title IX guidance moves us backwards when we desperately need progress in ending campus sexual violence.” The hashtag linked the message to many others, including personal accounts of sexual assault and also (contrary to original intentions) demands for greater protections for the accused. All these missives are aimed directly at Secretary of Education Betsy DeVos.1 And they are fascinating, for they suggest a regulatory landscape different from the one we teach in law school—a landscape in which savvy use of social media may be as important as the Administrative Procedure Act and in which people who lack conventional markers of influence demand the ear of top administrators. Fortunately, we have an excellent resource for understanding this landscape: a crop of historical work on petitions to government administrators. A particularly enlightening example is political scientist Daniel Carpenter’s contribution to Administrative Law from the Inside Out, On the Emergence of the Administrative Petition.
My first encounter with this vein of research was legal historian Kristin Collins’ work on military widows and their petitions for public pensions in the nineteenth century.2 More recently, through a draft article by legal scholar Maggie McKinley, I learned of the North American Petitions Project, a collaborative effort to digitize hundreds of thousands of petitions to government officials between the colonial era and the mid-twentieth century. McKinley uses these data to tell a story about petitioning Congress and how such activity helped give rise to the modern administrative state.3 By contrast, Carpenter—who is a co-principal investigator on the North American Petitions Project and has been at the forefront of digitization efforts—starts this particular chapter in the administrative realm. Drawing on original archival research, as well as on the work of historians Tiya Miles, Laurence Hauptman, and others, Carpenter reminds legal scholars that well before the formation of the Interstate Commerce Commission and other “modern” regulatory bodies, “thousands upon thousands of groups, organizations, and individuals petitioned administrative agencies both formally and informally.” (P. 350.) Carpenter then digs into a striking feature of this early body of petitions: “indigenous North Americans petitioned administrative agencies as much or more than any other population.” (P. 351.)
Carpenter identifies several factors that contributed to Native Americans’4 early and robust use of the administrative petition. One factor was a pattern of congressional deference to the President in matters relating to Indian policy. Presidents, in turn, delegated great power to administrators within the War Department and, later, the Department of the Interior. A second important factor was that these administrators had no intention of leaving Native Americans alone, but rather embarked on prolonged campaigns of dispossession and subordination. In other words, Native Americans had every reason to want to influence administrative decisionmaking. A third factor, Carpenter argues, was a tradition of “complaint and supplication” among indigenous North Americans that was already well established by the time of the Founding. (P. 358.) According to this tradition, all types of authority (i.e., administrators as well as legislators) were appropriate subjects of entreaty.
I could go on about Carpenter’s fascinating examples, but what I find even more compelling is how Carpenter addresses the “so what” question. He offers several answers, generally phrased as possibilities that merit more research. First, we should care about Native American petitions because sometimes they worked—that is, sometimes they resulted in administrative decisions or accommodations that reflected the petitioner’s preferences. Carpenter sees this as “plausibl[e]” in at least some instances of negotiations over indigenous ancestral lands. (P. 351.)
Second, the sheer volume of petitioning shows that Native Americans were never passive subjects of the U.S. government. There was a power differential, to be sure, but petitions suggest an active relationship with state power—a relationship of “monitoring, contestation, and issue framing.” (P. 370.) Moreover, official responses to those petitions demonstrate “the need and desire among early administrative officials for dialogue” with indigenous Americans—a recognition that although they were not “constituents or voters,” they were “more than dependents or mere obstacles to white settlers.” (Id.) In keeping with other exciting recent historical work, the implication here is that we must define “the state” in a way that fits the messy, on-the-ground work of governance and that does not neglect people who lacked formal authority.
Third, Native American petitions displayed interesting commonalities—in their style, in their content, and in their authorship. Carpenter notes, for example, the prominent involvement of women and a tendency over time toward legal and philosophical argumentation. These same patterns, Carpenter suggests, are discernible in later instances of petitioning by non-indigenous Americans, although the nature and degree of influence awaits future study.
I have saved for last one more answer to the “so what” question, because it brings me to the value of the edited collection as a whole (which also includes terrific chapters by legal historians Sophia Lee and William Novak). Drawing on history, Carpenter calls our attention to a feature of contemporary American governance that we know almost nothing about. Petitions to administrative agencies are “an everyday reality for many regulatory agencies,” Carpenter notes, but owing to the predilections of mainstream administrative law scholarship, we remain in a state of “collective ignorance” about them. (P. 350.) Like the work of Jerry Mashaw, which this collection honors, Carpenter’s chapter helps us look with fresh eyes on territory that we imagined had been thoroughly mapped and invites a more diverse set of scholars to join the expedition.
- On the launch of this social media campaign, see Brittney McNamara, This Campaign Wants Donald Trump to Take Sexual Assault More Seriously, Teen Vogue, Jan. 11, 2017.
- Kristin A. Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Public Marriage-Based Entitlements, 31 Law & Hist. Rev. 1 (2013).
- Maggie McKinley, Petitioning and the Making of the Administrative State, Yale L.J. (forthcoming 2018) (on file with author).
- In my own work, for reasons I explain there, I have used the term “American Indians” to refer to indigenous North Americans. Karen M. Tani, States’ Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935-1954, 33 Law & Hist. Rev. 1, 3 n.6 (2015). I adopt here the terminology that Carpenter employs.