The Jurisprudence of Access to Justice:

From Magna Carta to Romer v. Evans
via Marbury v. Madison

Leonard W. Schroeter
Schroeter, Goldmark & Bender
500 Central Building
810 Third Avenue
Seattle, WA 98104


Whether it has been the relentless political attack on legal services for the poor; the widespread continuous assaults on the civil justice system, inappropriately labeled "tort reform"; the trashing of lawyers and their professional associations by rabid legislators and media; or the cacophonic hysteria about judges soft on crime, and juries out of control, increasingly, the jurisprudence of access to justice, and the value and meaning of rule of law has commanded our attention.

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 jurisprudential 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 jurisprudence -- 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 access a system of justice, the most basic and fundamental of the rights of our common law and constitutional heritage.

Romer v. Evans States Our Thesis

On May 20, 1996, Justice Kennedy delivered the opinion of 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The unconstitutional Colorado initiative not only rescinded city ordinances banning discrimination against homosexuals, in many transactions and activities including housing, employment, education, public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.

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 instances 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 fundamental 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.

New Attacks on Rights to Access Justice

The jurisprudence of the Nineteenth Century, still remembered its Common Law roots, and its constitutional precepts. The addition of new states, adopting constitutions, making explicit the fundamental right of access to the justice system, and protection of the laws, reaffirmed this jurisprudence. But there were growing claims of competing rights. Business and commerce growth was rampant. Corporations were formed. Railroads and mining secured special privileges, and burgeoning capitalism sought to secure government protection in their accumulation of power and wealth. However, Justice Fields had clearly enunciated in the Slaughter-house Cases, the settled law with respect to claims of corporate rights. Corporations had claimed that they were entitled to the privileges and immunities of citizens in the states. But the law was that,
Corporations were not citizens within the meaning of this clause. The term "citizens" applied only to natural persons, members of the body politic, owing allegiance to the state, not to artificial persons created by the Legislature and possessing only the attributes which the legislature had prescribed. Where contracts or rights of property were to be enforced by or against a corporation, the courts of the United States would, for the purpose of maintaining jurisdiction, consider the corporation as representing citizens of the state under the laws of which it was created, and to this extent would treat the corporation as a citizen, extending the judicial power of the United States to controversies between citizens of different states. It had never been held in any case either in the state or federal courts that a corporation was a citizen within the meaning of the clause in question, entitling the citizens of each state to the privileges and immunities of citizens in the several states. . . . A corporation being a grant of special privileges to the incorporators, had no legal existence beyond the limits of the sovereignty where created, and the recognition of its existence by other states, and the enforcement of its contracts depended purely upon the assent of those states, which could be granted upon such terms and conditions as those states might think proper to impose.
In 1905, in Lochner v. New York, 198 U.S. 45, the Supreme Court in a 5-to-4 decision, held that New York law relating to the health of bakery workers, and providing for a 10-hour day and 60-hour week, was unconstitutional on the grounds that the liberty of contract guaranteed by the Fourteenth Amendment, protected the bakery industry as against the health and safety of the workers. In an eloquent dissent, Justice Holmes, in memorable language, stated:
The Fourteenth Amendment does not enact Mr. Herbert Spencer's social statics. . . . A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally different views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the constitution of the United States. General propositions do not decide concrete cases. The decisions will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end.
Yet, two years later, in Chambers v. Baltimore & Ohio Railroad, 207 U.S. 143 (1907), the Supreme Court in a wrongful death case of a railroad locomotive engineer brought by his widow, led to a reversal of a favorable verdict on the grounds that a statute of Ohio where the case had been brought required that the plaintiff be a citizen of Ohio. Mrs. Chambers was a citizen of Pennsylvania. She claimed that Article 4, Section 2, ¶ 1 of the Constitution of the United States which provided that, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" had been violated. The majority affirmed the judgment below, with a strong dissent by Justice Harlan. All Supreme Court justices agreed, however, that,
The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the federal constitution.
Thus, even a badly split Court unanimously agreed that access to justice was a fundamental right, and the earlier United States Supreme Court cases enunciating this principle were again repeated. Justice Harlan's view for the minority was that jurisdictional standing decisions were also capable of denying fundamental rights. He saw the statute of Ohio as applied as being a denial,
in every essential sense, of a fundamental privilege belonging to him under the Constitution in virtue of his being a citizen of one of the states of the union -- the right to sue and defend in the courts of justice, which right this Court concedes to be 'one of the highest and most essential privileges of citizenship.'
Historically, we recognize that in the Slaughter-house Cases, Lochner, and Chambers there was a transient triumph of the economic partisanship of a majority of our highest Court over the eloquent, time-honored dissents of our greatest judges. But it is noteworthy that in none of the cases is there a denial of the fundamental nature of the right to access the justice system. Thus, despite results that may appear shameful to us almost a century later, there was a continuity in the underlying principles.

Washington's Supreme Court's Decisions Require Clearer Affirmation

Although there have been ups and downs in the attention given to the fundamental right of access to justice by the Washington State Supreme Court, a 1989 comment in the Washington Law Review (*) somewhat gingerly surveyed the Washington State experience. That article referred to an earlier Gonzaga Law Review article authored by Charles Wiggins, Bryan Harnetiaux, and Robert Whaley, as well as collecting other law review discussions. A bibliography of cases and law reviews prepared today would demonstrate a sharp increase in both commentary and case comment on this fundamental right.

Washington State is one of the 39 states that adopted the access to justice/open court/right to remedy language originating in the language of Magna Carta, although the Washington version is more truncated than most. The most extensive discussion of the doctrine is found in the 1975 decision Carter v. University, 85 Wn.2d 391. The opinion by Justice Finley arises in an access to the courts context and involves a motion to proceed in forma pauperis, and a motion to file an appeal without the payment of costs or appeal bonds. The Court's discussion begins by stating;

Universal access to the courts is certainly not a novel concept in the annals of jurisprudence. Access to the courts was prized and protected by the Romans over 2300 years ago.
The Court cited scholarly studies and decisional law, largely enunciated in the 1960s and early 1970s, at the peak of the influence of the Warren Court, and in the midst of enthusiasm for the Great Society. The social goals of the period included war on poverty and racial discrimination. The State of Washington was no exception in its concerns to achieve these social goals.

Justice Finley, in a lengthy essay on the "constitutional right of access to the courts" cited, among others, Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971), and Goldberg v. Kelly, 391 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970), but noted that the "potentially catalytic decision of" of Boddie had been "restricted by the Burger Court with a five-to-four decision in United States v. Krass and Ortwein v. Schwab. Finley also favorably noted that, in O'Connor v. Matzdorff, 76 Wn.2d 589 (1969), "the Supreme Court of Washington forthrightly provided some real judicial leadership in shaping the emerging role that indigents should not be denied access to the justice system simply by reason of poverty."

Justice Finley recognized that his decision was occurring on the downswing of the United States Supreme Court constitutional sensitivity. Thus, he felt that "rather than become enmeshed in the vagaries in the right of access to the courts, pursuant to the federal constitution, we deem it preferable to consider the question under our own Washington Constitution." The plethora of scholarly discussions and judicial comments that were commonplace a quarter of a century ago are, unfortunately, not as well known today.

Fifteen months later, in Housing Auth. v. Saylors, 87 Wn.2d 732 (1976), with Justice Finley no longer on the Court, Carter was distinguished and partially overruled.

In the ensuing years, in cases, not evolving around issues of poverty, Washington courts continued recognizing access to justice as a basic right. John Doe v. Puget Sound Blood Center, 117 Wn.2d 772, was a 1991 opinion of Justice Brachtenbach. The case involved a discovery order to disclose the name of a blood donor whose blood was contaminated with the AIDs virus. The trial court's order permitted discovery because the plaintiff had a right of access to the courts which included the right of discovery authorized by the civil rules. The Supreme Court stated:

Our Constitution mandates that "justice in all cases shall be administered openly, and without unnecessary delay."
Constitution, Article 1, Section 10.
That justice which is to be administered openly is not an abstract theory of constitutional law, but rather is the bedrock foundation upon which rests all the people's rights and obligations. In the course of administering justice, the courts protect those rights and enforce these obligations. Indeed, the very first enactment of our state constitution is the declaration that governments are established to protect and maintain individual rights. Constitution, Article 1. Constitution, Article 1, Sections 1-31 catalog those fundamental rights of our citizens. The drafters of our constitution placed such great importance upon rights that they provided: "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." Constitutional Article 1, Section 32.
The Court then reviewed its cases in the field, concluding that the right of access to the courts "must be accorded a high priority."

Recent decisions in Washington State remind us that in Mills v. Orcas Power & Light Co., 56 Wn.2d 807 (19__), the Court had recognized that where there has been an injury, there is a remedy. See also Justice Talmadge's dissenting opinion in Griffin v. Eller, decided September 5, 1996, citing Chief Justice Marshall in Marbury v. Madison, recognizing the fundamental right of every individual to claim the protection of the laws. See also Justice Sanders' dissenting opinion in State v. Rivers, 129 Wn.2d __, decided August 8, 1996, relying on fundamental constitutional principles, Article 1, Section 32, and natural law principles in determining the meaning of cruel punishment.

The Substantive Right of Access to Courts

In recent times, numbers of courts have based their opinions on the premise that right of access to the courts is basic to our system of government and is one of the fundamental rights protected by the Constitution, relying on Article 4, Section 2, Clause 1, and the First, Fifth and Fourteenth Amendments. They hold that this right must be adequate, effective and meaningful, and urge that interference with right of access to the courts gives rise to claims for relief under the civil rights statutes. In doing so, they collect and rely upon dozens of United States Supreme Court and lower federal court cases, many of them decided in recent years. See, for example, Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983), and the most compelling of recent decisions, In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995).

In this opinion by Judge Beckwith, involving human radiation experimentation and 30-40 year old collusive, fraudulent concealment of non consensual experimentation, the Court applies the substantive right of access to the courts, which it characterizes as "basic to our system of government, and one of the fundamental rights protected by the Constitution." In addition, Judge Beckwith invokes the important precedent of the Nuremberg Code, establishing the human rights violation involved in unconsented human experimentation and the violation of the right of bodily integrity. As the Court states, "the Nuremberg Code is part of the law of humanity. It may be applied in both civil and criminal cases by the federal courts in the United States." Judge Beckwith's decision and the cases she cited demonstrate that the violation of international human rights treaties and convention, as well as customary international human rights law, are constitutionally adopted into the framework of American law.

Just as from the beginning of our judicial experience, our highest courts and our wisest jurists understood and applied Common Law, and the jurisprudential values of Western civilization, in more recent times there has been a recognition that fundamental constitutional principles are solidified and reinforced by United States adherence to treaties and conventions to which we subscribe. See U.S. Constitution, Article 3, Section 2, and Article 6, which extends the judicial power to such treaties and makes such treaties the "supreme law of the land."

Foremost among such incorporated documents is the Universal Declaration of Human Rights whose provisions include:

Article 6:
Everyone has the right to recognition everywhere as a person before the law.

Article 7:
All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 8:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 10:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.

Article 21:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.

Clearly, it is not only from Magna Carta, Common Law, the United States Constitution, state constitutions, and the Natural Law that access to justice and rule of law is seen as fundamental -- it is also universally recognized. But it is essentially left to the courts to implement and make real these precious rights.


A remarkable discussion by one of our greatest Supreme Court Justices, Benjamin N. Cardozo, in his book The Nature of the Judicial Process (Yale University Press 1921), gives us insight as to the methods utilized by judges in reaching their decisions. In a series of lectures, Cardozo discusses the method of philosophy, the methods of history, tradition and sociology, the judge as a legislator, and adherence to precedent -- the subconscious element in the judicial process. The books is full of wisdom and insight, as applicable today as it has been in the jurisprudential history of our society. Cardozo's summary of this masterful work is condensed in a few words, as follows:
My analysis of the judicial process comes then to this, and little more: Logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be good when it becomes uniformity of oppression. The social interests served by symmetry or certainty must then be balanced against the social interests served by equity and fairness, or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
For Justice Cardozo, the greatest force of all was "the power of social justice." For him, "the final cause of law is the welfare of society."

Just as for Justice Holmes, neither the Constitution nor the life of the law would permit the enshrinement of the theoretical and often erroneous assumption of the economists. The myth of the market is much like the myth of monarchy. Just as the divine right of kings reign "in law" for centuries, now is perceived as a manifest absurdity, the divinity of laissez faire is legally, jurisprudentially, and constitutionally irrelevant and transient. The moral excellence of economic competition is as "moral" as the survival of the fittest, and the social preference for the nobility of war. To the extent that the law seeks the promotion of the social benefit of greed, it corrodes itself in the same way as it does when it ennobles war, state violence, and the divine right of kings.

In contrast is the universality of the values of compassion and altruism and the historic constancy of these values through centuries, as contrasted with the transiencies of historic epics where the myths of monarchy and market seemed to reign. Through recorded civilizations the issues of social philosophy have always been concerned with the relationship of man to state (i.e., organized society). To those who have decried government: from the Communists with their belief that government will wither away; to the anarchists, nihilists, and the contemporary right-wing nihilists (with their hatred for health and economic regulations, public schools, courts of justice, and the protection of hallowed individual rights, by the affirmative action of government to protect those rights), we can only say that the tradition of the law is the inclusion of us all within its protection.

Access to justice is now, and has been, for hundreds of years, the most fundamental of all rights. Its alternative is the jungle. The conservors of the rule of law and constitutional values must be our judges and lawyers whose professionalism commit them to their ethical duty to uphold the nobility of the law, and their commitment to public justice.

Copyright © 1996 Leonard W. Schroeter
HTML Coding Copyright © 1997 Rod McCarvel


(*) -- Janice Wang, State Constitutional Remedy Provisions in Article 1, Section 10 of the Washington State Constitution: The Possibility of Greater Judicial Protection of Established Tort Causes of Action and Remedies, 64 Wash. L. Rev. at 203 (1989).