Author:McGinley, Patrick John


Scholars continue to debate how well state courts answer the call to be laboratories of democracy by interpreting their state constitutions as a source of novel and greater civil rights and liberties. (1) The "laboratory of democracy" is a call to state courts to honor the full panoply of federal rights (2) that all states must observe under the U.S. Constitution's Supremacy Clause, (3) yet simultaneously, to expand rights beyond federal minimums, (4) using an adequate and independent state law basis. (5)

The call is not new. In the 1930's, scholars published books, and the Yale Law Journal and Harvard Law Review both commented upon these books, proclaiming "an emerging pattern of... a new federalism in which the central government becomes something like the guardian of standards in areas of activity in large part administered by local governments." (6) Then in 1948, Justice Brandeis that "[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (7) In 1970, the arguments for the primacy of state constitutional law by Oregon Supreme Court Justice Hans Linde, who some call the '"intellectual godfather' of state constitutional law," (8) took hold upon the Oregon state courts. (9) In Oregon, and in just a few other states, independent state constitutional law jurisprudence bloomed. (10)

Then in 1977, William Joseph Brennan, Jr., who was an Associate Justice of the United States Supreme Court from 1956 to 1990, made perhaps the most famous call for the growth of independent state constitutional law jurisprudence. (11) To encourage each state to become a "laboratory of democracy," Justice Brennan wrote the following in a 1977 issue of the Harvard Law Review:

[S]tate courts no less than federal are and ought to be the guardians of our liberties. But the point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the [United States] Supreme Court's interpretation of federal law.... .... ... [S]tate courts that rest their decisions wholly or even partly on state law need not apply federal principles.... ... Prior to the adoption of the federal Constitution, each of the rights eventually recognized in the federal Bill of Rights had previously been protected in one or more state constitutions. And prior to the adoption of the fourteenth amendment [to the United States Constitution], these state bills of rights, independently interpreted, were the primary restraints on state action since the federal Bill of Rights had been held inapplicable. The essential point I am making... is simply that the decisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. (12) More than forty years has passed since Justice Brennan reissued the call to each state to interpret its state constitution as a laboratory of democracy. (13) So the call is old enough (14) and renowned enough. (15) A sufficient number of states have answered the call, (16) and sufficient time has passed (17) for us to check in on the progress of our "laboratories of democracy."

One experiment in the laboratories of democracy finds substantive rights established by the states' constitutions' "open courts" or "remedies" clauses. (18) Unlike the Federal Constitution, many state constitutions contain such a clause. (19) Generally, these Open Courts Clauses require state courts to be open to every person for the redress of any injury. (20) One of the longest-tenured chief justices of the Supreme Court of Texas once opined that "[o]f all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the right to a remedy through open access to the courts may be the most important." (21)

Nearly all states interpret their Open Courts Clause to require reasonable physical court access and basic due process of law. (22) We label this aspect of the Open Courts Clause as the Procedural Open Courts Clause. Other states expand the interpretation of the Open Courts Clause to create a Right to a Remedy. (23) That interpretation alters the classic separation of powers between the branches of state government by protecting existing causes of action from encroachment or abolishment. (24) We might call this the Substantive Open Courts Clause.

The Substantive Open Courts Clause can be an obstacle to state legislatures seeking to eliminate a right to sue, limit damage awards, repeal existing remedies, or reform their laws of torts or workers' compensation. "The Clause is often at the epicenter of... the historic power struggle between legislatures and courts." (25) Because the Substantive Open Courts Clause empowers a state's judiciary to strike down legislative attempts to abolish existing causes of action, the Substantive Open Courts Clause interferes with the separation of powers between the state's legislative branch on the one hand, and the state judiciary on the other. (26)

This Article seeks to answer the question: Is the Substantive Open Court Clause experiment a success? Stated somewhat differently, have the laboratories of democracy shown that the Substantive Open Courts Clause is worthy of adoption on a national level?

Part I analyzes the Open Courts Clause in state constitutions. We look at the historical origin of the clause and explain what rights the clause protects.

Part II compares and contrasts the Open Courts Clause with analogous rights in the U.S. Constitution. We examine whether these federal sources yield now, or could yield in the future, rights identical to those provided by state Open Courts Clauses.

Part Three weighs the benefits and detriments of the Substantive Open Courts Clause. In the conclusion, we opine whether the laboratories of democracy created a right that is worthy of advancement to the national stage, or whether the experiment failed.


    Forty states include an Open Courts Clause within their state constitutions. (27) Many commentators conclude that these clauses have a single historical origin. (28) The consensus is that the forty Open Court Clauses "derive[] ultimately from Magna Carta, where it took the form of a promise extracted from King John to reform his courts." (29) But as it happened before in the context of stating the historical origins of state constitutions, (30) the consensus view is an oversimplification of the historical record. A closer look at history reveals that, although both the Procedural Open Courts Clause and the Substantive Open Courts Clause derive from Magna Carta, (31) the Procedural Open Courts Clause is the result of the plain text of the original Magna Carta, (32) whereas the Substantive Open Courts Clause arises from an interpretation of Magna Carta made 400 years later by an influential English commentator. (33)

    1. Ancient Origin of the Procedural Open Courts Clause

      The year is 1215, and in King John's England, justice is for sale. (34) Barons have grown weary of buying justice from the king's courts. (35) To resolve the dispute between the king and the barons, and at the same time provide civil law protections for the Church, the Archbishop of Canterbury drafts the Magna Carta Libertatum, which is now commonly called the Magna Carta. (36) A commentator explains that

      King John's courts administered justice for a fee; those seeking access to the courts had to purchase writs, and the more costly writs guaranteed speedier and more successful claims. In response to the Crown's corrupting influence, Chapter 40 of the Magna Carta was written to restore the integrity of the courts by specifically prohibiting the selling of writs.... (37) In the official English translation, Magna Carta Chapter 40 reads: "To no one will we sell, to no one deny or delay right or justice." (38) This shows that Chapter 40's chief purpose was to stop payments to the king and his officers to expedite or delay lawsuits. (39) Chapter 40's purpose was not to restrict the legislature, but instead, to restrict King John and his courts. (40) It appears that "the preservation of judicial integrity [was] the essential purpose of Magna Carta Chapter 40." (41) Perhaps this is the reason why the text of Chapter 40 does not make an explicit reference to a right to a remedy.

    2. Ancient Origin of the Substantive Open Courts Clause

      Approximately four hundred years after the drafting of Magna Carta, England's Sir Edward Coke restated Magna Carta's Chapter 40 in chapter 29 of his Second Institute as follows:

      And therefore every Subject of this Realm, for injury done to him in bonis, terris, vel persona [i.e., goods, lands, or person], by any other Subject, be he Ecclesiastical, or Temporal[], Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the Law, and have justice, and right for the injury done him, freely without sale, fully without any denial[], and speedily without delay. (42) Although some scholars call this language from Sir Edward Coke's Second Institute a misstatement of Magna Carta Chapter 40, (43) it is more apt to say it was an expansion of the language of the original Magna Carta Chapter 40, expanded to make mention of a right to a remedy. (44) The original text of Magna Carta Chapter 40 makes no mention of remedies. (45) The Substantive Open Courts Clause, which protects the right to a remedy, harkens back not to the original Chapter 40, but instead to the language of the Second Institute.

      Sir Coke's expansive reading influenced Colonial...

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