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


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.


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.

A. 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)

B. 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 federal constitutional rights, (23) the expansion of the scope of federal constitutional rights, (24) the selective incorporation of rights recognized in the Bill of Rights, (25) and constitutional challenges to government action based upon alleged violations of due process and equal protection. (26) Even in areas traditionally within the realm of private ordering and private law, such as contract law, property law, and tort law, the ascendancy of public law is evident in federal and state legislation prohibiting discrimination in employment, (27) government standards and rules regulating the use of real property, (28) federal legislation prohibiting discrimination in housing, (29) and state legislation regulating product liability. (30)

C. The Third Development--The Predominance of Federal Law

During the twentieth century, federal law and jurisprudence came to overshadow state law and jurisprudence. (31) The federal-state structure of our republic is a dual-sovereign arrangement, and both the federal government and the state governments have authority as sovereigns and check the usurpations of the other. (32) In this structure, the people have delegated power through their state constitutions to their state governments, (33) and they have delegated power through the United States Constitution to the federal government. (34) Additionally, the people have delegated different powers to the federal and state governments. State governments have received broad grants of power from the people, (35) including general police power, (36) but the federal government has received limited and enumerated powers. (37) Additionally, in our federal system, the rights of citizens are doubly protected--by the federal Bill of Rights and the state bills of rights. (38)

As federal law came to overshadow state law, legal scholars, judges, and lawyers shifted their attention from state sources of law to federal sources of law, and from state constitutions and the rights recognized therein to the United States Constitution and federal rights. (39) Again, the United States Supreme Court's application of rights recognized in the federal Bill of Rights to state and local governments contributed to this trend and resulted in state and local governments becoming subject to a wide range of federal standards developed by federal courts. (40) Furthermore, the Supreme Court's broad interpretation of the Commerce Clause and other constitutional grants of legislative power to Congress also contributed to this federal shift as the federal government took on an ever-expanding role in regulating activities across the country. (41) This federalizing trend is also evident in the expansive reach of the federal administrative state that subjects a vast range of activities to federal regulation. (42)

D. The Impact on State Constitutional Interpretation

These developments in American law and jurisprudence have affected state constitutional interpretation and pose challenges for interpreters of state constitutional provisions. Such developments may lead legal scholars, judges, and lawyers to focus on the modern and the current, to emphasize the latest developments and the cutting edge of thought, and to neglect the historical contexts and the moral, philosophical, theological, and jurisprudential frameworks within which the writers of historical documents operated. (43) The focus on lawmaking and the development of public law may likewise concentrate our attention on the present and the future and lead us to neglect or misunderstand features of the Anglo-American law tradition, in which private law and the common law played a more prominent role in maintaining justice among people and empowered individuals to order their private lives and relationships. (44)

The federal structure of our republic brings special interpretive challenges to the task of state constitutional interpretation. First, the United States Constitution is the supreme law of the land, (45) and many state constitutional provisions are analogous to provisions of the United States Constitution. (46) As a consequence, the rulings of the United States Supreme Court as to the meaning of parallel provisions found in the Constitution can carry great weight as state courts consider the provisions of their state constitutions. Thus, not only has federal law and jurisprudence come to overshadow state law and jurisprudence, but the status of federal law and jurisprudence has special force because of the Supremacy Clause.

Second, state courts asked to interpret state constitutional provisions face a sequencing question when state and federal constitutional claims are presented together in a case. Several approaches have developed among interpreters of state constitutions (47) According to one approach, the primacy approach, state supreme courts should examine and resolve state constitutional issues first. This approach is premised upon an understanding that the states are the primary sovereigns in our republic and that state constitutions are fundamental laws that have independent status and are separate sources of rights. (48) Under a second approach, the supplemental or interstitial approach, state supreme courts first address the federal constitutional claim and then the state constitutional claim to see if the state constitution provides any right or protection to supplement or amplify the federal constitutional right. (49) Under a third approach, the dual sovereignty approach, state supreme courts evaluate and rule on both the federal constitutional issue and the state constitutional issue, reaching independent decisions under both. (50) A fourth approach, the lockstep or absolute harmony approach, is an interpretive approach in which sequencing is not an issue. According to this approach, state supreme courts defer to the United States Supreme Court's interpretations of the parallel provision in the federal Constitution and conform their interpretations of state constitutional provisions to federal constitutional jurisprudence. (51) Under a fifth interpretative approach, the criteria or factors approach, state courts consider various criteria or factors (such as constitutional texts, constitutional and other relevant history, and precedents) in interpreting their state provisions and determining when to treat a state constitutional provision as an independent source of rights. (52)

Third, in 1977, Justice William J. Brennan, Jr. observed that the tide of United States Supreme Court activism had begun to turn and that proponents of individual rights needed to shift their attention to state constitutions and the rights protection therein. (53) He urged state courts and litigants to extend the rights-protection effort beyond the United States Constitution to state constitutions, which he viewed as fonts of individual liberties with protections that often reach beyond those required by the Supreme Court's interpretation of the federal Constitution. (54) In the three-and-a-half decades since Justice Brennan issued his call, the renewed focus on rights protections in state constitutions developed into a movement with many state courts giving careful attention to their respective state constitutions and the double protection afforded by the federal and state bills of rights. (55) This has raised the stakes for state courts as they endeavor to address new constitutional claims, study the text and the history of their respective state constitutions, and interpret their state constitutional provisions.

Additionally, in the twentieth century, approaches to the interpretation of texts generally (whether literary, legal, religious, or otherwise) have proliferated, and author-centered, text-centered, reader-centered, and other interpretive approaches abound. (56) An interpreter's approach plays a decisive role in that interpreter's engagement with a text, for it determines whether focus is placed on the author, the author's intent, and the historical context of the author, or on the grammar and syntax of a text, the dictionary definitions of terms, and the original understanding of the author and the audience, or on the sense a reader makes of the document and the terms, principles, or values in the document and the meaning produced by the reader. Differences among interpretive approaches have translated into different theories of constitutional interpretation. Some constitutional interpreters focus on the text and the words of a constitutional provision, while others focus on the intent of the framers and constitutional design. Still others move beyond the text and the literal words to determine underlying values and give principles new applications. In the end, a variety of interpretative approaches to constitutional texts can be identified, such as Robert Bork's and Antonin Scalia's originalism, Frank Easterbrook's textualism, John Ely's representation reinforcement, Stephen Breyer's active liberty, the Constitution as common law, the living Constitution, the moral reading of the Constitution, libertarianism, the Constitution in exile, and so forth. (57)

All of these developments and factors render state constitutional interpretation an arduous undertaking. They have complicated the efforts of state supreme courts to understand the state constitutional provisions that recognize the right to remedy by due course of law and to interpret these provisions relative to the federal due process protections. This Article now turns to the Indiana Supreme Court's interpretation of Indiana's constitutional provision.


The Indiana Constitution of 1851 is one of the many state constitutions that recognizes the right to remedy by due course of law. (58) Article I, Section 12, which is included in the Indiana Bill of Rights, states, "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay." (59) The Indiana provision, like similar provisions in other states constitutions, (60) includes three separate clauses: the Open Courts Clause; the Remedy Clause; and the Administration of Justice Clause. (61) A separate provision of the 1851 Indiana Constitution includes language also found in the Declaration of Independence and the Fifth and Fourteenth Amendments to the United States Constitution, and it recognizes that "all people are created equal" and "are endowed by their CREATOR with certain inalienable rights," including "life, liberty, and the pursuit of happiness." (62)

In a series of cases over a six-year period, the Indiana Supreme Court explored the meaning of Article I, Section 12. The various opinions issued by members of the court in these cases manifest differing interpretations and disagreement about this provision and its history. (63)

A. Shook Heavy & Environmental Construction Group v. City of Kokomo

In the Shook case, the Indiana Supreme Court answered a certified question from a federal district court. Justice Frank Sullivan, Jr. wrote the opinion for the court, and Chief Justice Randall T. Shepard and Justices Roger O. DeBruler, Richard M. Givan, and Brent E. Dickson concurred. The court determined that a losing bidder on a city-awarded contract (in this case, a nonresident company that did not pay taxes in Indiana or the municipality) does not have a cause of action under Indiana law to seek an injunction prohibiting the city from awarding the contract to the selected bidder. (64)

In addition to concluding that neither Indiana statutory law nor Indiana common law provided the unsuccessful bidder a cause of action to enjoin the award of the contract, (65) the court considered whether a cause of action was available under Article I, Section 12. (66) After noting that the parties had not briefed this issue, which had been raised for the first time at oral argument, and that the court would not give the issue extensive treatment, the court observed that the argument for a cause of action under this Indiana constitutional provision "is analogous to a claim sometimes asserted by disappointed bidders against municipalities pursuant to 42 U.S.C. [section] 1983" alleging violations of "federal constitutional due process rights under the Fifth and Fourteenth Amendments." (67) The court thus characterized the proposed claim as an alleged violation of "state constitutional due process rights" under Article I, Section 12. (68)

After so characterizing the asserted claim, the court quoted an Indiana Court of Appeals opinion in which that court had considered such a claim and applied federal due process principles and the United States Supreme Court's due process jurisprudence in finding no protected property interest. (69) The Shook court also took note of some of its own precedents in which the court had applied federal due process principles in cases asserting federal due process claims and a "generic federal and state constitutional 'due process' claim as well." (70) The court then stated:
   Because [federal due process principles] are familiar
   principles in Indiana jurisprudence, [the court
   has] no difficulty in explicitly extending them to article
   I, section 12 of [the state] constitution. For a
   person to have a constitutional right under article I,
   section 12, to maintain a cause of action for injury
   done to the person in the person's property, the
   plaintiff must have allegedly suffered some injury
   to a protected property interest.... To have a property
   interest in a benefit, a person must have a legitimate
   claim of entitlement to it, derived from statute,
   legal rule or mutually explicit understanding. (71)

The court then found that the unsuccessful bidder had no protected property interest in the municipality following procedures set forth in the Indiana statute governing bidding and thus no cause of action under Article I, Section 12. (72)

B. Indiana High School Athletic Association, Inc. v. Carlberg by Carlberg

In the Carlberg case, the Indiana Supreme Court, in an opinion written by Justice Sullivan, determined that a high school student was not entitled to injunctive relief against the Indiana High School Athletic Association on his claims that two of the Association's rules violated the federal and state due process provisions, and it reversed the trial court's granting of injunctive relief. (73) Chief Justice Shepard and Justices Myra C. Selby and Theodore R. Boehm concurred in Justice Sullivan's opinion, but Justice Brent E. Dickson concurred in part and dissented in part. (74)

In considering the claim that one of the association's rules violated the student's due process rights under the United States Constitution and the Indiana Constitution, (75) the court stated that "[t]he Due Process Clause and [the] Due Course of Law Clause prohibit state action which deprives a person of life, liberty, or property without the 'process' or 'course of law' that is due, that is, a fair proceeding." (76) The court added that the "same analysis is applicable to both the federal and state law claims." (77) Although the court found that the Association was a state actor, it concluded that the student was not deprived of a protectable interest in life, liberty, or property, that he received the procedure he was due, and that the state had not interfered with any fundamental right or liberty. (78)

In his opinion, Justice Dickson contended that the trial court's judgment and injunction should be affirmed. (79) He posited that the majority was "mistaken in suggesting that [the] state constitutional due course of law analysis is necessarily co-extensive with federal due process jurisprudence." (80) Although Justice Dickson acknowledged that the Shook court had stated that the same analysis applied to the federal and state due process claims, he identified several reasons for discounting that the Shook court's declaration: (1) the court did not engage in any analysis, historical exploration, or construction of Article I, Section 12; (2) the Indiana constitutional claim was not raised until oral argument; (3) the court declined to give that claim extensive treatment because the issue was not briefed; and (4) the court looked to federal due process principles because they were familiar standards. (81) Accordingly, Justice Dickson thought that the Shook court's utilization of the federal due process analysis "should be seen as merely a convenient guide for cursory analysis and should not be read to dispositively hold that the federal and state analyses are identical." (82)

C. Journal-Gazette Co. v. Bandido's, Inc.

In the Bandido's case, the court reversed a trial court's judgment entered after a jury returned a verdict awarding damages to a restaurant defamed by a newspaper, and it also adopted the New York Times Co. v. Sullivan actual malice standard of proof for all defamation cases involving matters of public or general concern, whether brought by public figures or private individuals. (83) Justice Sullivan wrote the opinion for the court. Justice Selby concurred in Justice Sullivan's opinion, and Justice Boehm concurred but wrote a separate opinion. Chief Justice Shepard and Justice Dickson wrote separate dissenting opinions, and each concurred in the opinion of the other. (84)

In his opinion, Justice Sullivan focused on the First Amendment to the United States Constitution, the standards developed by the United States Supreme Court in the New York Times case, and the Supreme Court's subsequent defamation jurisprudence. (85) He also approved of a 1974 decision of the Indiana Court of Appeals that adopted the actual malice standard "for matters of public or general concern, irrespective of whether the allegedly defamed plaintiff was a public or private individual." (86) Federal jurisprudence and federal standards guided Justice Sullivan's analysis, and his selection of the standard that would apply in private defamation claims was primarily informed by federal constitutional standards and the Indiana Court of Appeals precedent,87 which was likewise heavily influenced by the United States Supreme Court's First Amendment jurisprudence. (88)

Justice Boehm, in his concurring opinion, agreed with Justice Sullivan that the actual malice standard should apply to reports on matters of public concern, that the clear and convincing evidence standard should apply for a defamation recovery on matters of public concern, and that this standard should apply irrespective of the characterization of the plaintiff as a public or private figure. (89) Justice Boehm reached these conclusions "purely as a matter of Indiana defamation law," although he thought that the case could "be resolved under existing federal constitutional precedent" and would produce the same result as was reached by Justice Sullivan. (90) Additionally, in Justice Boehm's view, applying the actual malice standard in defamation cases involving matters of public concern struck the right balance among the following "conflicting values" in the Indiana Constitution: (1) the right to remedy for in jury to reputation in Article I, Section 12; (2) the Article I, Section 9 prohibition against any law restraining the free interchange of thought and opinion or restricting the right to speak, write, and print freely; and (3) the Article I, Section 9 authorization to hold responsible those who abuse the rights to speak, write, and print freely. (91) He observed that the negligence standard would nevertheless apply to all defamation claims involving statements on matters of no public concern. (92)

In his dissenting opinion, Chief Justice Shepard observed that the court's decision in Bandido's makes it "hard for the average person to defend his or her reputation" and leaves "defamed citizens virtually without a remedy" when they are "falsely and publicly maligned" by news organizations. (93) In his view, the court, by "deploying one of the toughest tests known to the civil law, actual malice," constricted the rights of all Indiana citizens to the narrow remedy available to public figures under the New York Times standard. (94)

Justice Dickson's dissenting opinion provided the most extensive treatment of the state constitutional issues raised by this case. In Justice Dickson's view, the plaintiff was a limited purpose public figure. Consequently, the First Amendment and the actual malice standard applied, and the case did not properly present the issue that was of interest to Justice Sullivan (i.e., what standard applies to defamation claims asserted by private individuals). (95) Although that issue was not properly before the court, Justice Dickson addressed that issue and the state constitutional questions because the opinions of his colleagues had undertaken to address them. (96) Additionally, Justice Dickson thought that the court's choice of what standard to apply in defamation actions brought by private plaintiffs against media defendants on matters of public and private concern and by public officials/figures in cases involving private matters should be informed by Indiana's constitutional provisions. (97)

Justice Dickson turned first to Article I, Section 12, highlighting the text of the 1816 and 1851 Indiana Constitutions. The text of these provisions, he observed, guaranteed that "every person" "shall have remedy" by due course of law for "injury done" to his or her "reputation." (98) The available journals and reports of the debates and proceedings from the constitutional conventions did not yield insight into the framers' intended meaning regarding the provision, (99) and he thus indicated that he found "no record of the intentions of Indiana's framers in either 1816 or 1851 with respect to this provision." (100) But he also noted that a person's interest in his or her reputation is an important value that has long received protection in the law. (101)

Additionally, Justice Dickson traced the principles set forth in Article I, Section 12 back to provisions of the 1215 Magna Carta, which "were transmitted to America largely through Lord Edward Coke's highly influential commentary on the Magna [Carta], which was among the most frequently read legal texts in colonial America." (102) He then referenced the following restatement of Article 40 of Magna Carta by Coke:
   [E]very Subject of this Realm, for injury done to
   him in [goods, land, or person], ... 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.

   Hereby it appeareth, that Justice must have three qualities, it
   must be [Free, for nothing is more iniquitous than justice for
   sale; Complete, for justice should not do things by halves; and
   Swift, for justice delayed is justice denied]; and then it is both
   Justice and Right. (103)

After providing a brief survey of other state constitutions that include a provision similar to Article I, Section 12 and protect the right of reputation, (104) Justice Dickson observed that defamation law protects a person's reputation and that "legal recognition and protection of a person's reputation interest is deeply entrenched in our history and practice." (105) He then concluded that "[t]he Indiana Constitution expressly protects an individual's right to remedy for harm to reputation." (106) This conclusion, he thought, was reinforced by Article I, Section 9, which, in addition to protecting the right to speak and print freely, requires that "every person shall be responsible" "for the abuse of that right." (107) 108 Because "[t]ortious defamation constitutes such abuse of the right" and "liability for damages in our courts of law" is an accepted means of holding actors responsible for their abuse and the injuries they cause, (108) the court should "favor the common law rule that would require publishers of defamatory statements to be responsible in damages when they negligently injure private figure plaintiffs or plaintiffs involved in issues of private concern." (109) Accordingly, Justice Dickson's reading of Article I, Sections 9 and 12 and his study of the relevant history led him to conclude that the traditional common law standard, the negligence standard, should apply "to those defamation actions that lie outside the scope of the special protection afforded to free speech under the U.S. Constitution." (110)
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Title Annotation: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
Author:DeBoer, Michael J.
Publication:Faulkner Law Review
Date:Sep 22, 2014
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