The right to remedy by due course of law - a historical exploration and an appeal for reconsideration.

• Author: DeBoer, Michael J.
• Position: I. Introduction through III. Five Indiana Supreme Court Cases Interpreting the Indiana Right to Remedy Provision C. Journal-Gazette Co. v. Bandido's, Inc., p. 135-166 - Faulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery

1. INTRODUCTION

   The 800th anniversary of Magna Carta and the 50th anniversaries of the Selma to Montgomery March and the Voting Rights Act provide a well-suited occasion for reflection on rights in Anglo-American law, including some rights that do not owe their existence entirely to human positive law, but that human positive law nevertheless recognizes and honors. (1) This Article focuses on one particular right in the Anglo-American legal tradition that is recognized in most state constitutions--the right to remedy by due course of law. This right has a distinguished history that extends from current state constitutional provisions, back to state constitutions in the early American republic and Sir William Blackstone's Commentaries on the Laws of England, and then further back to Sir Edward Coke's Second Part of the Institutes of the Laws of England and Magna Carta. (2)

   In state constitutions, this right to remedy by due course of law is recognized in a provision found in state bills or declarations of rights that typically includes several clauses. (3) The first clause requires that courts be open (the Open Courts Clause). The second clause requires that remedy, by due course of law, be afforded to every person who suffers injury to his or her person, property, or reputation (the Remedy Clause). The third clause requires that justice be administered speedily, freely, and completely (the Administration of Justice Clause).

   This Article explores the meaning of this right to remedy by due course of law by studying the history of the state constitutional provision that recognizes it. (4) It argues that the state supreme courts that have equated this provision of their state constitution with the Due Process Clauses of the United States Constitution have misunderstood this provision. (5)

   This study develops in several steps. Part II of this Article discusses three significant developments in American law and jurisprudence that have had a profound impact on state constitutional interpretation and have contributed to the misunderstanding of this provision. (6) Part III examines the opinions of members of the Indiana Supreme Court that were issued in a series of cases that interpreted this provision, and it highlights some of the different approaches and different understandings among the justices. (7) Part IV explores the history and the sources of this state constitutional provision and the right to remedy by due course of law, noting two distinct textual paths--the "due process" path and the "remedial" path--that developed from Magna Carta in English law and were incorporated into early state constitutions. (8) Along the way, this study will provide insight into the rich meaning of this provision, the three clauses included in it, and the right to remedy by due course of law. This Article concludes with an appeal to state supreme courts to reconsider their precedents interpreting this provision and the right to remedy by due course of law and to take into account the historical exploration conducted here.

2. THREE SIGNIFICANT DEVELOPMENTS IN AMERICAN LAW AND JURISPRUDENCE

   Three twentieth-century developments in American law and jurisprudence--the emergence of legal positivism as the dominant legal theory, the ascendency of public law over private law, and the predominance of federal law over state law--have had a profound impact on state constitutional interpretation and have made the interpretation of this state constitutional provision a more challenging undertaking. As a consequence, state courts have misunderstood this provision of their own constitutions, including the right to remedy by due course of law that is recognized in the provision.

   1. The First Development--The Dominance of Legal Positivism

      Beginning in the last half of the nineteenth century, but especially during the twentieth century, legal positivism emerged as the dominant theory of law. (9) Legal positivism takes a descriptive approach to understanding what law is and seeks to describe law as it is, rather than as it should or might be. (10) Legal positivists aim to separate the description of law from the evaluation of law. (11) They endeavor to keep law separate from morality and moral judgments, (12) and they strive to analyze and describe law as a social fact or convention. (13) Thus, the legal positivist's goal is to understand law as an objective social reality, a reality that is not laden down with bias, ideology, or moral judgments. (14)

      As legal positivism gained dominance, the notion of natural rights (i.e., the idea that some rights come before, or are antecedent to, the creation of the state and human positive law) increasingly lost credence. (15) With the concept of natural rights disparaged, lawmakers and the laws they make could take on even greater significance and authority in defining rights, balancing conflicting interests, and constructing the social order. (16)

   2. The Second Development--The Ascendency of Public Law

      During the twentieth century, public law came to overshadow private law in American law. (17) Private law safeguards the pre- political rights of individuals. It is law grounded on justice in relationships among individuals, and it protects the private choices and the ordering of affairs by individuals. Contract law, property law, tort law, and family law are among the principal bodies of private law, and these bodies of law allow individuals to order privately their affairs by voluntarily assuming legal rights and obligations. (18) Public law, by contrast, is oriented to public ordering, and it is predicated on the pursuit of common goods, social goals, and public policies. Public law, such as administrative law, constitutional law, criminal law, and labor law, structures government, defines the functions and responsibilities of government officials and agencies, and regulates relations between civil government and citizens (and private entities). Public law often involves compulsion and restriction on private freedom because, with public law, legal rights and obligations are not voluntarily assumed. 9

      The overshadowing of private law by public law is reflected in the volumes of federal and state legislation enacted throughout the country, (20) the growth of federal and state administrative agencies, (21) and the broad delegations of rulemaking and adjudicative authority to agencies. (22) Additionally, it is reflected in the dramatic rise of litigation of...