The Fundamental Right of
Meaningful
Access to Justice
Our Nation's Promise of
"Equal Justice for All"
is Among its Proudest Traditions
Introduction
THE RIGHT TO MEANINGFUL ACCESS TO JUSTICE:
Meaningful access to justice refers to the ability of all people to seek
and obtain an effective remedy through formal or informal institutions
of justice, and in conformity with human rights standards.
Meaningful access to justice intersects with human rights in a number of ways.
First, it is itself a fundamental human right as set out in Article 8 of
the Universal Declaration of Human Rights:
“Everyone has the right to an effective and meaningful remedy by the
competent national tribunals for acts violating the fundamental
rights granted him by the Constitution or by law."
Meaningful access to justice has two dimensions: procedural access (having a fair hearing before
a fair tribunal) and also substantive justice (to receive a fair and just remedy for a violation of one's rights).
It also refers not only to the courts, but also civil and administrative processes such as immigration review or state
compensation funds. Further, protection of rights must continue through all stages of the legal process,
from the time of reporting a crime to the police, tofollowing the grant of a remedy by the court to make
certain that it is enforced.
Because the terms "access to justice" and "rule of law" are so commonplace, so assumed, so
obviously essential to civilized, non violent societies; they seem so self-evident, that the
basis for these essential and fundamental values has been largely ignored.
One can search almost in vain for treatises that flesh out their contours. Our purpose here
is one of education in the history and philosophy of law. Its goal is to secure understanding of
the concept and value of the individual right to be able to effectively access a system of justice, the most
basic and fundamental of the rights of our common law and constitutional heritage.
Furthermore, the right to effective and meaningful access to the courts, in forma pauperis, to seek redress
for legitimate claims and grievances is a fundamental right guaranteed and protected by the Constitution
of the United States. Without it rights are only meaningful to the rich.
Romer V. Evans
On May 20, 1996, Justice Kennedy delivered the opinion o the United States Supreme Court in Romer v. Evans.
The decision's headnote states: Colorado State Constitutional Amendment, effectively repealing state and local
provisions that bar discrimination on basis of sexual orientation, held to violate equal protection clause of
Federal Constitution's Fourteenth Amendment.
The reasons supporting the basic holding are an eloquent and brief restatement of the jurisprudence
of access to justice. The Court said: 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." 134 L. Ed. 2d 855 at 866.
The unconstitutional Colorado initiative not only rescinded city ordinances banning discrimination against
homosexuals, in many transactions and activities including housing, employment, education, public
accommodations, and health and welfare services, but it also prohibited all legislative, executive, or judicial action,
at any level of state or local government, designed to protect these individuals. In short, it took from them the
protection of the law. They alone were forbidden from legal protection, and from accessing the political process.
In the United States Supreme Court, an amicus brief was filed, authored by Laurence H. Tribe, counsel of record,
and a group of other distinguished professors of constitutional law, they focused their argument, simply and
elegantly, on the concept of protection of the law. They argued that the Colorado initiative constituted a per se
violation of the Equal Protection Clause of the Fourteenth Amendment, which provides that, "No state shall . .
. deny to any person within its jurisdiction the equal protection of the laws." Thus, that command is violated
when a state renders individuals ineligible for "the protection of the laws." Singling out any group of individuals
for discriminatory treatment and depriving them of access to rights enjoyed by others made them completely
ineligible for the protection of its laws, and thus from the benefit of rule of law. The Equal Protection Clause
in its language is as free from particularizing of discrete and insular groups as is the concept of equal justice
under law -- a right of every individual.
As the brief argued: "Selective preclusion of access to state law for redress from private discrimination would
be inconsistent with the Fourteenth Amendment's command of equality before the law." This is so self evident
that it shocks one's sensibilities that the proposition could be contested, and Justice Kennedy for the Court
adopted the law professor's argument. 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.
The Magna Carta Is The Historical Source Of The Doctrine
Some scholars suggest that the earliest expressions of access to justice and rule of law, in the Common Law tradition,
occurred during the reign of Henry II, late in the Twelfth Century, by his institution of systems of writs that enabled
litigants of all classes to avail themselves of the king's justice. It is more popularly thought that, under Henry's son,
King John, the abuses in the application of the "king's justice" prompted a rebellion by the united barons, compelling
John to sign the Magna Carta in 1215. The Great Charter, in its original form, and subsequent renditions,
symbolically and politically became the primary original source for British constitutionalism. What it represented
then and now is a social commitment to rule of law, as a promise that even the king was not above the law.
As Blackstone later stated, "It is the function of the common law to protect the weak from the insults of the stronger.
" 3 Blackstone Commentaries 3.
Current historians summarize the meaning of the Great Charter:
With the issue of Magna Carta at Runnymede, the demands of a few malcontents for the redress of personal grievances,
and for a vaguely-worded promise of protection from further injustices, were transformed into a charter of exact and
detailed rights; a document which formulated the aspirations of the best men of the period so effectively that generation
after generation sought the guarantee of their own rights through the reaffirmation of its principal provisions.
. . . Magna Carta in its final form clearly embodied the principle that the King was bound by law in the exercise of his
power, and that the same law in turn bound the barons in the exercise of theirs, and so gave protection, not just to
the few, but to all 'free men'.
The essence of Magna Carta's achievement can be seen in three of its most famous clauses, where John promised:
"No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or
send against him, except by the lawful judgement of his peers or by the law of the land. To no one will we sell, to no
one will we deny or delay right or justice . . . .
"Moreover, all those aforesaid customs and liberties, the observance of which we have granted in our kingdom as
far as pertains to us towards our men, shall be observed by all our kingdom, as well clergy as laymen, as far as
pertains to them towards their men."
Magna Carta by Daphne I. Stroud (London 1980).
This was intended to not only bind the king, but the society for all times to come. The charter stated:
Wherefore, it is our will, and we firmly enjoin, that the English Church be free, and that the men in our kingdom have
and hold all the aforesaid liberties, rights, and concession, well and peacably, freely and quietly, fully and wholly, for
themselves and their heirs, of us and our heirs, in all respects and in all places for ever, as is aforesaid. An oath,
moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall
be kept in good faith and without evil intent. Given under our hand -- the above-named and many others being
witnesses -- in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June,
in the seventeenth year of our reign.
In the more than 500 years following Runnymede, common law courts resolved disputes, created precedents,
and thus law. Judges and scholars probed and discussed the meaning of Magna Carta. These commentaries,
most notably those by Sir Edward Coke and William Blackstone, not only lay the foundations for, and understanding
of Common Law in England, and subsequently in what became the United States, but they became the corpus of
our jurisprudence. Those who wrote our constitutions, both federal and state, were well aware of the jurisprudential
concepts, and indeed the language, of the Great Charter, and the Common Law.
It would be unfair to say, however, that our constitutional fathers were limited to only those perceptions. Many were
learned in civil law concepts as well. They were familiar with natural law, and Roman law. In short, they inherited
and incorporated social philosophers with a universality, encompassing at least the Western Civilization with which
they were familiar. Central to these ideas, was the role of government and the reign of law, and, increasingly,
the "rights of man."
Access To Justice Is An Historic Fundamental Right
For our forefathers, no right was as fundamental as the capability to access the legal system, i.e., to be the
beneficiary of a rule of law that protects one's rights against the most powerful. Inherent from the beginning
was the idea that a right requires a capability of securing a remedy. That remedy must necessarily be found in
a justice system. Thus, rights cannot exist and have meaning if the system cannot be accessed, and if it fails
to provide a fair and just hearing, and result. All of "rights" law assumes the existence of government, of justice,
and of access to it. The core idea of "access to justice" has been referred to by terms such as "access to the courts"
and/or "the right to a remedy"; and/or a basic "common law right." Whatever the language used is, in 39 of our
state constitutions, there is some form of the following language:
All courts shall be open; every person for injury done to 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.
These remedy clauses are directly traceable to Magna Carta, and frequently appeared in the legal documents of the
Colonies, even before the Revolution. They were assumed to be fundamental although not explicitly stated in
the Constitution or the Bill of Rights.
Access to justice provisions appeared in many of the original 13 Colonies. In Virginia, it was taken for granted
as so basic a doctrine of the Common Law and Natural Law, that specification was unnecessary. However,
when the preparation of the Bill of Rights occurred, it was modeled upon Virginia's Declaration of Rights of 1776,
and thus the usual "access to justice" clauses were not included. 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 to be certain that this doctrine, which was so self evident that it was omitted and thus not
enumerated, clearly had to be defined as part of our fundamental constitutional heritage. Thus, the Ninth
Amendment's intent was to include these undeniably basic, common law values by a specific (albeit unenumerated)
Constitutional clause, protecting unstated individual rights.
In reviewing constitutional law, from the earliest days of this Republic, the values and principles of access to justice
are present, and it is consistently defined as a fundamental right. But in headnote terms, it is sometimes couched as
due process of law. At times, it is classified as a privilege and immunity. Or its denial may be termed a violation of
equal protection of the law. The right itself has been categorized as petitioning the government for a redress of grievances.
Justice John Marshall's Jurisprudence
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 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. The opinion by Mr. Justice Marshall reviewed
the common law background, largely English precedents, and scholarship -- principally Blackstone; the Federalist papers,
and the language of the Constitution itself. After initially 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 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 as follows:
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, "It 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 found in the Constitution,
and cites the oath of judicial office:
I do solemnly swear that I will administer justice without respect to persons, and to equal right to the poor and to
the rich; and that I will faithfully and impartially discharge all the duties incumbent upon me as according to the best
of my abilities and understanding, agreeably to the Constitution and laws of the United States.
Although Magna Carta took a giant stride toward rule of law, those participating meaningfully in the society were
limited to a small number of privileged men. Over half a millennium passed without significant expansion of the
rights of the individual, or inclusion in the access to the king's justice. The American Revolution was in substantial
part based upon distrust of the divine right and ultimate power of the king as executive, and the unrestrained
power of Parliament, which represented rule by an upper class and oligarchy.
The Revolution and Declaration of Independence expanded concepts of right and broadened the inclusion of
society's access to the protection of government. We spoke of all men being created equal and possessing rights
that were inalienable. But as Justice Marshall reminded us, government can only be justified if its powers were
derived from the consent of the governed. When the United States Constitution was written, it insisted upon
separation and limitation of powers. It further recognized that some values were so fundamental that the individual
require protection from the executive, the legislature, and even the courts; certainly from a transient majority.
Thus, we had a written constitution with a bill of rights and a recognition that some rights were fundamental.
We believed that there had to be limitation of the powerful whether by royalty, wealth or privilege. These were
values of such permanence, entitled to such respect, that the public interest was to have priority over any claims
of privilege. Thus, Justice Marshall construed the Constitution and what it meant.
But in 1803, those who were perceived to be politically equal, were white men over the age of 21, and in most i
nstances required to be property owners. It took well over half a century for the Thirteenth, Fourteenth and
Fifteenth Amendments to be added, and this, in turn, led to further examination of the nature of rights, and how
they were to be implemented in a federal system.
The Meaning of Rights Are Judicially Revisited
The Slaughter-house Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall 36, decided in the December 1872 term, led
to an extensive reexamination of the jurisprudential bases of our constitutional system. The issue arose over an
act of the Louisiana legislature, which, in the guise of police power and protecting the health of the city of
New Orleans, created a monopoly over most of the state in slaughter-houses and the butcher trade. The litigation
was fierce and protracted. The Louisiana Supreme Court had upheld the monopoly and the power of the
legislature to create it, over claims that the act of the legislature was a violation of the most important provisions
of the Thirteenth and Fourteenth Amendments to the Constitution of the United States. The arguments not only
invoked the principles of the common law, but relied on precepts of Civil Law, most notably French and German
precedents, but it also invoked natural law concepts and lessons of history. The Supreme Court was badly split.
The opinion of the Court upheld the power of the state of Louisiana to create such a monopoly as an appropriate
exercise of the police power, rejected claims made under the Thirteenth and Fourteenth Amendments, recognizing
that this was the first opportunity of the United States Supreme Court to give construction to those important
amendments. The Court plurality sought to limit the reach of the Fourteenth Amendment, and in particular the
meaning of citizenship of the United States, but they accepted as rights which were fundamental, the right to
protection of the government. But the rights defined were declared to belong to the individual as a citizen of a state.
The rights of citizens of the United States were essentially limited to the restraints of the federal government stated in
the Bill of Rights.
History has been kinder to the dissent by Mr. Justice Field. He surveyed the history of constitutional growth and the
jurisprudence of justice with eloquence and scholarship. He noted that the question presented was of grave importance
to the whole country.
It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of
the United States against the deprivation of their common rights by State legislation. In my judgment, the Fourteenth
Amendment does afford such protection and was so intended by the Congress which framed and the States which adopted it.
Justice Field held that, the privileges and immunities secured against abridgement by state legislation included the full
and equal benefit of all laws and proceedings for the security of person and property. He reminded his colleagues that,
the term "privileges and immunity" appears in the Constitution in Article 4, Section 2, and cited the early decision
of Mr. Justice Washington in Corfield v. Coryell, as ruling that these privileges and immunities were in their nature
"fundamental." They were rights of citizens of all free governments and have been possessed by citizens of the states
which composed the Union from the time of their becoming free, independent and sovereign. They necessarily
include the right to protection by the government, and the enjoyment of life and liberty. Thus, the privileges and
immunities of citizens of the United States is secured against abridgement in any form by any state.
"The Fourteenth Amendment places them under the guardianship of the National authority." In conclusion, Field
cited Blackstone, as follows:
Civil liberty, the great end of all human society and government, is that state in which each individual has a power
to pursue his own happiness according to his own view of his interests, and the dictates of his conscience,
unrestrained, except by equal, just, and impartial laws.
There was a separate and concurring dissent by Mr. Justice Bradley. It, too, is an extensive essay on the meaning
and application of the Constitution. He opined that it is not necessary to resort to implications of the constitutional
history of England to find an authoritative declaration of the most important privileges and immunities of citizens
of the United States, because these are explicit and implicit in the Constitution itself, and are "rights of all persons,
whether citizens or not."
But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no
less real or no less inviolable than they now are. It was not necessary to say in words that the citizens of the
United States should have and exercise all the privileges of citizens. . . . [which included] the privilege of resorting
to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not
possess them before.
Mr. Justice Bradley's comment as to the breadth and application of access to justice was decisively determined in
1886, in Yick Wo v. Hopkins, 118 U.S. 350, 30 L. Ed. 220, 6 S. Ct. 1064. Plaintiff Yick Wo had petitioned the
Supreme Court of California for a writ of habeas corpus, claiming he was illegally deprived of his liberty by
virtue of a sentence of the police judge court in San Francisco, where he was found guilty of a violation of an
ordinance prescribing the kind of buildings in which laundries were to be located. He was fined $10. Yick Wo
had been in California for a quarter of a century and had been engaged in the laundry business in the same
premises for most of that time. He had been fully licensed and inspected after the ordinance was passed.
However, he was a native of China. It was undisputed that virtually all laundries were constructed of wood,
and that most of them were owned and conducted by subjects of China. Only the Chinese laundrymen were
arrested and compelled to discontinue their business. Yick Wo claimed that he had been denied his rights in
violation of the Constitution. (There were also treaty provisions of the United States with China which were violated.)
The California Supreme Court denied Yick's Wo's writ of habeas corpus, further denying that the Fourteenth Amendment
had application. Yick Wo had claimed that he had been denied equal protection, and that he should be protected in
the enjoyment of his personal and civil rights. He argued that he should have access to the courts for the protection
of his person and property, and for the prevention and redress of wrongs. A unanimous Supreme Court agreed,
holding that the Fourteenth Amendment was not confined to the protection of citizens since by its terms it forbade
states to deprive any person of life, liberty or property without due process of law. It held that "the equal protection
of the laws is a pledge of the protection of equal laws." The Court stated:
When we consider the nature and theory of our institutions of government, the principles upon which they are supposed
to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave
room for the play and action of purely personal and arbitrary power . . . Sovereignty itself remains with the people,
by whom and for whom all government exists and acts, and the law is a definition and limitation of power. Thus,
the fundamantal rights to life, liberty and the pursuit of happiness considered as individual possessions are secured
by those maxims of constitutional law . . . securing the blessings of civilization under the reign of just and equal laws.