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Maggie McKinley explains the role of petitioning in American history

October 23, 2017

This year, Penn Law welcomed Maggie McKinley to the Law School faculty. McKinley (Fond du Lac Band of Lake Superior Ojibwe) teaches in the areas of constitutional law, federal Indian law, and legislation. In this video feature, she discusses her research on petitioning and legislation, and talks about the Constitutional Law course that she’ll teach in the spring. 

 

Transcript:

My work looks at the empowerment of minorities and specifically looking at the structures that we build within democracies to allow minorities to participate. My current project looks at lobbying and petitioning and the ways in which minorities use those levers to enact laws and to work within our legislatures. So, within congress.

When I say petitioning, most people think about those online petitions that you sign and submit and no one ever actually looks at within Congress. They’re more symbolic political gestures that don’t go anywhere or do anything, but at the founding of this country you could actually walk into Congress with a document that looked like a complaint, and we called it a petition, and present that petition to your member of Congress. And that member would treat that petition more like litigation in a court than the tool of mass politics that petitioning has become today.

So, the member would take that petition and read it on the floor of Congress, making it a part of the formal record. And then it would treat that petition like a complaint so you would get a formal hearing and a response, an investigation, and then Congress would decide whether or not to grant or deny that petition. And that process was actually open to everyone equally, including the uninfranchised.

So, women, African Americans, Native Americans, the foreign born, and even children used and abused the petition process for about a hundred and fifty years of this country’s history to be able to engage in law-making and to be heard within our legislatures.

I’m going to teach 1L Constitutional Law this year. Constitutional Law usually has two big components to it: there’s a part on structure, which is Federalism, separation of powers, and a section on rights.

My hope is to work a little bit of Federal Indian Law into my first-year Constitutional Law course — meaning that I’d like to at least at some point reflect on the fact that within this constitutional democracy that we have, we have colonized people living within it. And so, our Federal Indian Law structure is actually this, like petitioning, a means of minority empowerment that allows colonized people to exist within a constitutional democracy and not be in tension with that idea.

So historically, there was at least an enlightenment thinking, there was a concern that constitutional democracies and imperialism could not coexist, and so I’d like to bring in the thought that we’ve built these infrastructures around tribal governments and recognizing tribal sovereignty — as imperfect as they are — to be able to allow within a constitutional democracy to resolve those artifacts of empire that we’ve inherited through the colonial process.