May 1999

The Fundamental Right to Access to Justice: The Historical Antecedents

by Leonard W. Schroeter

The individual right to access a system of justice has been the most basic and fundamental of the rights of our constitutional and common-law heritage. This right was adopted as a foundation-stone of our country's jurisprudential beliefs. It is found explicitly in state constitutions, and implicitly as an integral part of the United States Constitution's values. Because it is so fundamental, and so obvious a part of "rule of law," it has been assumed, and thus neglected. There is a paucity of contemporary legal literature reaffirming it. Any significant historical research, however, documents the prominence of the concept over the approximate 800 years of its existence.¹ 

The core idea of "access to justice" is often referred to by terms such as "access to the courts," "the right to a remedy" and/or basic "common-law rights." Whatever the language differences are, in at least 39 of our state constitutions, there is some form of the following language: "All courts shall be open; every person for injury done to him in his goods, lands, or person shall have remedy by due process of law; and right and justice shall be administered without self-denial or delay." As Professor Francis McGovern noted: "These remedy clauses, traceable to the Magna Carta, guarantee that the courts of justice shall be open to every person for redress of any injury, without denial or delay." ² 

Other writers conclude that these clauses, as well as better known due-process provisions, have as their origin the following comment from the Magna Carta:

No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, or send upon him, except by the legal judgment of his peers or by the laws of the land, and "To no one will we sell, to no one will we deny, or delay right or justice."³ 

Sir Edward Coke, the towering jurisprudential figure for our Founding Fathers, resurrected and interpreted chapter 29 of the 1297 Magna Carta, seeing these remedy provisions as a jurisprudential right.⁴ That view was well-known and frequently appeared in the legal documents of the colonies, even before the Revolution. They were a part of the original constitutions adopted in the late 18th and early 19th century by most of the states. These "access to justice" provisions have been defined as:

[t]he taproot of the English and our common law system, central to which is the idea that common law courts resolve disputes, creating precedents, and thus law….Some scholars trace the earliest foundations of the common law back to the reign of King Henry II (1154-89).⁵

There is no question but that, for several hundred years, including before the United States Constitution came into existence, these provisions of the Magna Carta, signed by King John in 1215 and reissued by subsequent early British kings, were a central theme of what came to be known as English constitutionalism. There is no doubt that the Founding Fathers who wrote the Constitution were fully familiar with them, and that the jurisprudential basis of the United States, and the individual states, was based on the language of that heritage. There are full expositions of this history and tradition from Coke through Blackstone in his Commentaries Upon the Law of England, and in E.S. Creasy, The Rise and Progress of the English Constitution (1886), essential texts for American legal scholars into the 20th century.⁶ Repeatedly in the Federalist Papers and various commentaries on the creation of the United States Constitution and its Bill of Rights these themes are present.

These "access to justice" provisions appeared in all the original 13 colonies, except for Virginia, where it was taken for granted as so basic a doctrine of the common law and natural law, that its specification was unnecessary. When the Bill of Rights was prepared, it was modeled upon Virginia's Declaration of Rights of 1776, and thus the usual "access to justice" clauses found in other states were not included. Professor McGovern advises that one of the purposes for the Ninth Amendment ("the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people") was that fundamental rights which were so self-evident need not be enumerated, although they had to be defined as a part of our fundamental constitutional heritage. Thus, the Ninth Amendment's intent was to include inherited fundamental common law values by a specific (albeit unenumerated) Constitutional clause protecting self-evident individual rights — the "truths" of the Declaration of Independence.⁷

Any possible textual ambiguity in the Federal Constitution was resolved in 1803 by our country's most important Supreme Court decision and Justice John Marshall's jurisprudence. Marbury v. Madison⁸ stands virtually alone in our constitutional history in establishing the meaning of judicial power and judicial review. It defined what the original constitutional intent was, and gave shape and power to rule of law under a constitutional system. Marshall's opinion reviewed the historic background, English precedents and scholarship — principally Blackstone, the Federalist Papers and the Constitution itself, in determining that Marbury, the petitioner, had a right to a writ of mandate, to compel Secretary of State Madison to issue his commission as a justice of the peace in the District of Columbia. He then reached his second inquiry, which was: "If he has a right, and that right has been violated, do the laws of his country afford him a remedy?" His answer was:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

Citing Blackstone, he stated:

It is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and that every injury its proper redress. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Justice Marshall then defined the basis for judicial review in a constitutional system with separation and limitation of powers, noting that "[i]t is emphatically the province and duty of the judicial department to say what the law is." He describes "the very essence of judicial duty" as upholding fundamental principles.

In the almost 200 years since Marbury, the Supreme Court has recognized and reaffirmed this fundamental core principle, sometimes eloquently, as in the recent case of Romer v. Evans.⁹ Justice Kennedy, in declaring unconstitutional a Colorado initiative rescinding city ordinances barring discrimination against homosexuals, stated to the court:

Central both to the idea of the rule of law, and to our own Constitution's guarantee of equal protection, is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities."

Yet the 800-year-old jurisprudential principle of rule of law, and access to justice — the principle that government and each of its parts remains open on impartial terms to all who seek its assistance — has strangely and vigorously been contested over and over again.

Access to Justice in Case Law

In researching "access to justice," the devil is not in the details, but in the classifications. The basic principle of "access to justice" can be found over and over again, often quite accidentally, reading case law and law reviews on other issues, because the values and principles of "access to justice" necessarily underpinned the more superficial issue. Research in the field of tort preemption repeatedly led the United States Supreme Court's evaluation as to whether a state common law tort action was preempted to inquire as to whether preemption would deprive a party of a remedy. The Court recognized that result was a grave constitutional deprivation. Yet they did not generally adopt the language of "access to justice" in refusing to preempt a state cause of action. In evaluating the fundamental right involved, it is sometimes couched in terms of "due process of law" or "equal protection" of the law.

A principal subject area where the issue arises is poverty law. Another area of concern is court underfunding and shutdown. There is an ABA Special Committee on Funding the Justice System. Questions as to the right to have attorney representation and issues involving legal services raise these questions directly. Likewise, they are present in contingent fee; the English rule on costs; award of attorney fees in public- interest representation; and other impediments to access to justice from court rules, preclusive court rulings, and denial of the right to present one's case. But in legal research bibliographies and case headings, one is not apt to find an "access to justice" classification, despite its being the crucial underlying constitutional issue.

The high-water mark of Supreme Court sensitivity to poverty issues was almost 30 years ago. Boddie v. State of Connecticut¹⁰ was a class action brought on behalf of all female welfare recipients residing in Connecticut and wishing divorces, but who were prevented by Connecticut statutes requiring payment of court fees and costs for service of process as a condition precedent to access to the courts. The Court held that this denied due process of law to indigent persons by refusing to permit them to bring divorce actions except on payment of fees and costs they were unable to pay. Justices Douglas and Brennan concurred, urging that the Equal Protection Clause be considered applicable. Justice Harlan's opinion for the Court11 sets forth an historic and philosophic basis for the right of access to justice, citing large numbers of cases supporting that right. Douglas stated that he believed that "this case should be decided upon the principles developed in the line of cases marked by Griffin v. Illinois,"¹² quoting Justice Black's opinion in Griffin stating that "[t]here can be no equal justice where the kind of a trial a man gets depends on the amount of money he has."

The Court heavily relied upon the previous year's opinion in Goldberg v. Kelly,¹³ holding that procedural due process under the Fourteenth Amendment required that welfare recipients be afforded an evidentiary hearing before termination of benefits by welfare authorities. Justice Brennan wrote the opinion which has been frequently cited, stating, "From its founding this Nation's basic commitment has been to foster the dignity and well being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty."¹⁴ The Court's decision refers to ". . . certain principles [that] have remained relatively immutable in our jurisprudence . . . They have ancient roots. They find expression in the Sixth Amendment. . . . This court has been zealous to protect these rights from erosion . . . 'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.'"¹⁵

Since Goldberg v. Kelly and Boddie v. Connecticut, reflecting the Warren Court's sensitivity to the claims of the poor, and the fundamental right to access to justice, the Burger and Rehnquist Courts have been notable for their parsimonious attitudes about access to the courts. Occasionally, however, in the special circumstances of prisoner cases, these concerns were reinvigorated. In Bounds v. Smith,¹⁶ in an opinion by Justice Thurgood Marshall, it was held that the fundamental constitutional right of access to the courts requires state prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries, or adequate assistance from persons trained in the law. The Court's majority took it as indisputable that there is a fundamental right to access to the courts. Chief Justice Burger, joined by Justice Rehnquist in dissent, denied that there was such a fundamental right, but did so without any citation supporting that claim. Since 1977, some Supreme Court cases have reaffirmed the principles.¹⁷

In the Ninth Circuit, in the leading case of Armster v. United States District Court,¹⁸ Judge Reinhardt, for the Court, held that wholesale, nondiscretionary suspension of civil jury trials, and a blanket moratorium on all civil jury trials for three-and-one-half months due to lack of funds violated the petitioner's Seventh Amendment rights. The case was brought for petitioners by Seattle attorneys Brian Putra and Judith Bendich. It is a classic example of the unconstitutionality of non-funding and court suspension, and a forceful affirmation of the fundamental nature of the rights protected. The court stated:

Constitutional rights do not turn on the political mood of the moment, the outcome of costs/benefit analyses, or the results of economic or fiscal calculations. Rather, our constitutional rights are fixed and immutable, subject to change only in the manner our forefathers established for the making of constitutional amendments. The constitutional mandate that federal courts provide civil litigants with a system of civil jury trials is clear. There is no price tag on the continued existence of that system, or on any other constitutionally provided right. The decision to maintain a system of civil jury trials was made long ago at the time our Constitution was adopted. It is not within our power or that of any other branch of government to create exceptions for budgetary reasons….Neither the Congress nor the courts can deprive a litigant of the right to a civil jury trial.

There are many cases involving state constitutionalism where the "access to justice" issues arise directly, and far more frequently than in federal courts, because of the specific state constitutional provisions referred to above.¹⁹ In Washington state, there have been numbers of state Supreme Court decisions raising these issues.²⁰

More recently, although the funda-mentality of access to justice was not articulated as clearly, it has been present in some interesting cases. John Doe v. Blood Center²¹ was an action seeking damages for negligence from a blood center by the estate of a person who died from an AIDS-related disease after receiving a blood transfusion, and who sought to compel the blood center to identify the person who donated the blood. The Washington Supreme Court affirmed an order permitting discovery of the identity of the donor. They specifically decided that the constitutional assurance of justice must be openly administered, and that the Washington "open court" provision, Article 1 Section 10, is the basis for the right of all parties to have access to the courts within the framework of the law. Discovery rules serve to practically implement the particular interests of parties to a specific dispute in furtherance of this general principle of access.

Justice Brachtenbach, for the Court, studiously evaluated the plaintiffs involved, writing a three-page essay on the right of access to the courts, in this state.²² Article 1, Section 10, like other "open court" provisions, has its origins in theMagna Carta. The Court stated, "That justice which is to be administered openly is not an abstract theory of constitutional law, but rather is the bedrock foundation upon which rest all the peoples' rights and obligations." The Court underlined that "the right of access to the courts is a fundamental right."²³

Even fundamental principles of constitutional jurisprudence ebb and flow with the politics and passions of our times. But it is the duty of the courts to preserve and implement those principles. This view has been elaborated upon by the author.24 The clearest expression of the imperative necessity for legal responsibility to meet the ever-widening gap between rich and poor, and the priority which we must attach to it, was said almost 100 years ago by the famous French satirist Anatole France:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Notes

1 Roman law also was concerned with "access to the threshold of the judicial system." Bruce W. Frier, The Rise of the Roman Jurists: Studies in Cicero's Pro Coecina (Princeton Univ. Press, 1985).