Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture
142 Pages Posted: 20 Nov 2012
Date Written: November 19, 2012
This Lecture addresses — and expands on — one facet of an argument set forth in the book, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (2011), that Dennis Curtis and I wrote. Here, my focus is on idea of courts as a constitutionally-obliged substantive entitlement, a positive and regulated service that the government subsidizes.
This government service is deeply embedded in constitutional texts and doctrines. The 1820 Missouri Constitution is illustrative: That courts of justice ought to be open to every person, and certain remedy afforded for every injury to person, property, or character; and that right and justice ought to be administered without sale, denial, or delay; and that no private property ought to be taken or applied to public use, without just compensation.
Yet when written, the Missouri Constitution also protected the rights of slaveholders; “every person” was not then what is meant today by the phrase.
This Lecture examines the history and transformation of the import of these clauses in state constitutions. In the twentieth century, social movements enabled all persons to be in courts in all roles — from litigants, witnesses, jurors, lawyers, and (yet more recently) judges. This entitlement became, at a formal level, universal in its availability, as is public education and government benefits such as social security.
A measure of the success of the expanded role for courts can be seen from the rising number of filings in courts. In state courts, more than forty million civil and criminal cases (traffic, juvenile, and domestic relations cases aside) are filed annually. Further, in the wake of large numbers of indigent litigants (drawn into courts either as criminal defendants or seeking to enter as plaintiffs), governments have come to offer additional, targeted court-related services, such as fee waivers and subsidized lawyers, for certain subsets of disputants.
The puzzles about what methods of support are required intersect with growing bodies of law that limit access through requirements that disputants use alternatives, such as mandatory arbitration. Thus, the import and impact of “open courts” and “rights-to-remedies” clauses are once again in question. While monumental in ambition and often in physical girth, the durability of courts as active sites of public exchange before independent jurists ought not to be taken for granted. The continuation of accessible court services for ordinary disputants seeking state-based dispute resolution assistance is far from assured but requires, as it always has, political commitments to sustaining the services that courts provide to the government and its peoples.
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