The right to remedy by due course of law - a historical exploration and an appeal for reconsideration.
In Martin, the court determined that the statute of limitations provision of the Indiana Medical Malpractice Act violated Article I, Section 12 because the statute of limitations, as applied to the plaintiff, deprived her of any meaningful opportunity to file an otherwise valid claim within the statutory time period by requiring her to file the claim before she could reasonably discover that she was injured and had a claim. (111) Justice Selby wrote the opinion for the court, and Justices Dickson and Boehm concurred in her opinion. Justice Sullivan concurred in result and wrote a separate opinion, but Chief Justice Shepard dissented with a separate opinion. (112)
In her opinion, Justice Selby declined to "explore the outer bounds of Section 12 in this case." (113) Rather, she undertook to issue a ruling no broader than what was "required by the precise facts at issue" and determined to focus upon the statute as applied to the plaintiff. (114) In evaluating the Article I, Section 12 claim, she began with the text of the provision. (115) She observed that the court had not recognized "a 'fundamental right' of access to the courts or to bring a particular cause of action to remedy an asserted wrong," and that the legislature may modify and abrogate "common law rights provided that such change does not interfere with constitutional rights." (116) She explained that the statute of limitations limits, but "does not abrogate[,] the [substantive] right to seek redress in court because the bar does not fall until a reasonable time for filing has expired." (117)
In reviewing the court's precedents that applied to the plaintiffs claim, Justice Selby observed that a legislative enactment violates Article I, Section 12 and the right of access to the courts when "it unreasonably den[ies] citizens the right to exercise this right" or "deprives a person of a complete tort remedy arbitrarily and unreasonably." (118) A violation of this constitutional guarantee and an "offense to lay concepts of justice" would likely occur if a statute of limitations were to preclude "all malpractice actions under all circumstances unless commenced within two years from the act complained of (discoverable or otherwise)." (119) She noted that the court had invalidated, as applied to a mentally and physically incapacitated plaintiff, a statutory occurrence-based notice provision that required the claimant to give notice to a municipality within sixty days of an incident. (120) Under the court's precedents, she wrote, a legislative restriction of the right of access to the courts "must be a rational means to achieve a legitimate legislative goal." (121)
Seeking to issue a ruling carefully tailored to the case before the court, Justice Selby held that "[e]ven a restrained interpretation of Section 12 warrants the conclusion that an application of the two-year statute of limitations on the facts of this case violates both Section 12 and 'lay concepts of justice.'" (122) Thus, "the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim." (123) She also observed that the court's application of Article I, Section 12 was consistent with the rulings of courts in other states that have provisions similar to Indiana's. (124)
Justice Sullivan, in his concurrence, expressed his view that Indiana Supreme Court precedent established that the statute of limitations in the Indiana Medical Malpractice Act does not violate Article I, Section 12, and thus he disagreed with the court in that respect. He agreed with the court, however, that summary judgment for the defendant was not warranted because issues of material fact existed as to whether the doctrine of active fraudulent concealment tolled the statute of limitations. (126) Chief Justice Shepard, agreeing with Justice Sullivan, stated his belief that the court had already determined that the statute of limitations does not violate Article I, Section 12. (127)
E. McIntosh v. Melroe Co., a Division of Clark Equipment Co.
In McIntosh, the court exhibited profound disagreement regarding the meaning and the application of Article I, Section 12. The court held that the ten-year statute of repose provision of the Indiana Products Liability Act did not violate the due course of law provision of the Indiana Constitution and that the plaintiffs had no legally cognizable injuries for which a remedy existed. (128) Justice Boehm wrote the opinion for the court, (129) and Chief Justice Shepard concurred in his opinion. (130) Justice Sullivan concurred in part and concurred in result, and he wrote a separate opinion. Justice
Dickson dissented and wrote a separate opinion, in which Justice Robert D. Rucker concurred. (131)
Justice Boehm began his opinion with a brief review of the court's methodology of interpreting the state constitution. This methodology requires the court to study the constitutional text, the history of the times when the constitutional text was drafted and ratified, the purpose and structure of the constitution, the intent of the framers, and the case law interpreting specific provisions. (132) As to Article I, Section 12, he observed that he found "no relevant guideposts on this point" other than "the text itself, precedents of this Court, and precedents from other states with similar provisions" and that "there appears to be no unique Indiana history surrounding the adoption of this Clause in 1816 or its redrafting in 1851." (133)
Justice Boehm then turned to the line of decisions in which the Indiana Supreme Court had treated as interchangeable the federal Due Process Clauses and the Indiana due course of law provision. (134) He explained that the federal and state provisions share the following commonalities: they prohibit state action that deprives a person of a protectable interest without a fair proceeding, and they require that claimants have a protectable interest. (135)
Although he observed that the federal and state provisions share some things in common, he went on to identify several differences. The federal provisions guarantee procedural and substantive due process rights. The federal procedural due process guarantee applies in both civil and criminal contexts and requires notice and a meaningful opportunity to be heard at a meaningful time. The federal substantive due process guarantee prohibits some outlandish government actions that shock the conscience, and these actions "cannot be accomplished by any procedure." (136)
Justice Boehm then noted that Article I, Section 12 also has "multiple strains," but that they "are not the same as" the two federal strains. (137) First, Article I, Section 12 has a substantive strain that, according to Justice Boehm's understanding, "is analogous to federal substantive due process." (138) This substantive doctrine requires "that legislation interfering with a right bear a rational relationship to a legitimate legislative goal, but [it] does not preserve any particular remedy from legislative repeal." (139)
Second, Article I, Section 12 has a procedural strain. The first sentence of Article I, Section 12, which includes the Open Courts Clause and the Remedy Clause, requires procedural fairness, but it only applies in the civil context. (140) It guarantees '"remedy by due course of law' for injuries to 'person, property, or reputation,"' but it does not reference any "deprivation of 'life, liberty, or property,"' which triggers the federal due process requirements in the criminal context. (141) Likewise, the Open Courts Clause, which requires that all "courts shall be open," "seems meaningful only to civil litigants." (142) As for the "procedural right to 'remedy by due course of law' in a civil proceeding," the "body of law" that has developed is "essentially identical to federal due process doctrine." (143) He observed that the second sentence of Article I, Section 12, the Administration of Justice Clause, had provided the basis for criminal speedy trial claims, but that "[n]o other criminal rights have been derived from Section 12 except by the loosest mention, without analysis, of 'due process.'" (144) Instead, under the Indiana Constitution, criminal procedural doctrines and protections "have almost uniformly developed, not by reference to Article I, Section 12, but rather under the various other more specific provisions that make up our state Constitution's counterpart to the [federal] Bill of Rights," and thus Indiana constitutional criminal procedural protections differ from federal due process criminal procedural protections. (145)
Applying this understanding of the substantive and procedural strains of Article I, Section 12, Justice Boehm concluded that the statute of repose in the Indiana Product Liability Act does not violate the state constitutional provision. As to the substantive strain, he expressed his view that the Indiana General Assembly may eliminate a common law remedy without transgressing this provision, (146) and that the statute of repose is rationally related to a legitimate legislative objective. (147) As to the procedural strain, he opined that the statutory provision does not regulate the procedure in courts, (148) and that the legislature has the authority to identify legally cognizable claims for relief and may by law provide no remedy. (149)
In his concurring opinion, Justice Sullivan expressed his agreement with Justice Boehm that the statute of repose does not violate Article I, Section 12. (150) He thought, however, the court had already determined that the statute of repose does not violate this state constitutional provision. (151) Additionally, he understood the legislature to have defined when a product liability tort claim is available and concluded that the plaintiff did not have a valid tort claim because the alleged injury occurred outside the boundaries established by the legislature. (152)
In his dissenting opinion, Justice Dickson argued that the statute of repose violated the Remedy Clause by depriving the plaintiffs of remedy for the injuries suffered. (153) He agreed with the majority that the federal Due Process of Law Clauses and the Indiana due course of law provision are not synonymous, (154) but he thought the Indiana provision should be evaluated independently under the court's standards for interpreting Indiana constitutional provisions. (155) For Justice Dickson, the distinct texts and the distinct histories of the federal and state provisions warranted this separate consideration. (156) He noted that the framers of the 1816 Indiana Constitution and the framers of the 1851 Indiana Constitution did not adopt the language of the Due Process Clause of the Fifth Amendment to the United States Constitution, which was adopted in 1791, and that the provision in the 1816 Constitution and the provision in the 1851 Constitution antedated the adoption of the Fourteenth Amendment in 1868. (157) Consequently, the Indiana framers could not have used the Fourteenth Amendment as the model. (158) Justice Dickson emphasized that the framers and the ratifiers of the Indiana provision chose emphatic language, providing that every person who suffers injury "shall have remedy by due course of law." (159) 160 They did not merely require "due process"; instead, they "unequivocally enhanced the protections afforded by our state constitution, expressly establishing the additional right to remedy for injuries suffered." (160)
Justice Dickson's analysis of the text led him to a legal dictionary published roughly contemporaneously with the 1851 Indiana Constitution, which defined "remedy" as "Ttjhe means employed to enforce a right or redress an injury.'" (161) This definition suggested that the Remedy Clause "does not entitle a person to automatic reparation or recompense, but rather ensures access to the courts to seek reparation or recompense for wrongful injury." (162) Justice Dickson observed that most other state constitutions included a similar provision and that these provisions are traceable to Chapter 40 of Magna Carta of 1215. (163) He also noted that the Indiana Supreme Court, just ten years after the 1851 Constitution was adopted, stated: '"No one,' says Judge Story, 'will doubt that the Legislature may vary the nature and extent of remedies, so always that a substantial remedy exists.'" (164) And he drew upon additional authorities for the general principle that '"for every wrong there should be a remedy'" and for the insight that '"[t]he 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.'" (165)
From his study of the text and the history of Article I, Section 12, Justice Dickson concluded:
Section 12 provides separate and distinct protections and is not coextensive with federal due process jurisprudence.... Section 12 ensures ... that procedures must comply with due course of law, [and] both the text and the history provide strong support for understanding Section 12 of Indiana's Bill of Rights to provide a substantive right to remedy for injuries suffered. (166)
Although the Indiana General Assembly under the general police power may qualify the right by limiting the time within which to assert a remedy or modifying the procedure for enforcing the remedy, it could not, in Justice Dickson's view, "completely bar the courthouse doors to all persons injured by products over ten years old, even for claims alleging negligence, and even where the products were designed, built, sold, and purchased with the expectation of decades of continued use." (167) Justice Dickson was firmly convinced that the statute of repose "denies all Indiana citizens access to justice ensured by the Right to Remedy Clause," but especially "those economically disadvantaged citizens who must rely on older or used products rather than new ones." (168)
F. Observations Regarding These Decisions
A survey of these five cases shows four different approaches to interpreting Article I, Section 12, especially against the backdrop of federal due process jurisprudence. First, the approach of Justice Sullivan was that of basic equivalence between Indiana's constitutional provision and the federal due process provisions. Relying upon Indiana Supreme Court and Indiana Court of Appeals precedents, his interpretation of Article I, Section 12 was guided by federal due process principles, and he adopted federal due process standards as Indiana's standards. The textual similarity of "due course of law" and "due process of law" and some shared concepts seemingly suggested to Justice Sullivan that the provisions were equivalent, but he did not undertake to analyze the texts, study textual similarities and differences, or explore the history of the provisions.
Second, the approach of Justice Boehm was to observe the court's standards for state constitutional interpretation and look to various sources including Indiana precedents and precedents from other states with similar provisions that could inform him as to the meaning of the Indiana provision. Although he probed Indiana precedents, his study of other sources was neither extensive nor rigorous. In his interpretation of Article I, Section 12, he began with Indiana cases that treated the federal Due Process Clause and Indiana's due course of law provision as interchangeable, and he noted principles that the Indiana provision shares with the federal provision. He acknowledged some differences in meaning between the Indiana and federal provisions where the textual differences rendered an equivalent understanding implausible. Although he understood Article I, Section 12 not to provide procedural protections in the criminal context equivalent to those under federal procedural due process, his interpretation of Article I, Section 12 resulted in a nearly equivalent understanding of federal due process of law and Indiana's due course of law as to procedural rights in civil proceedings, and he found Indiana's constitutional substantive due course of law strain to be analogous to federal substantive due process.
Third, Justice Selby's approach to state constitutional interpretation was restrained. Rather than exploring the broad contours of Article I, Section 12, she sought to address the constitutional issue raised by the case on narrow grounds based upon the court's precedents and the rulings of courts in other jurisdictions with a similar state constitutional provision. Consequently, her opinion identified and applied particular standards and rules that had been set forth in the court's Section 12 cases, but it did not undertake to perform an extensive textual and historical study of Article I, Section 12.
Fourth, the approach of Justice Dickson was to analyze the state constitutional text, considering the terminology of the provision and noting similarities and differences with the federal provisions and the earlier Indiana constitutional provision. His approach also included exploring the history that led to the provision and tracing its sources back to one of the earliest antecedents, Magna Carta.
Among the justices issuing opinions in these five cases, Justice Sullivan came the closest to the lock-step approach, and his opinions evidence the substantial influence of federal constitutional standards on his interpretation of Article I, Section 12. Justice Dickson exhibited the strongest view that the Indiana Constitution and Article I, Section 12 should receive independent treatment based upon the constitutional text and the history. Justice Boehm's approach reveals a heavy influence by federal constitutional principles and standards upon his understanding of Article I, Section 12 but also an attentiveness to the text of the state constitutional provision and a willingness to consider state constitutional history when the text and the history can enhance the court's understanding of the meaning and give reason to depart from the federal constitutional provisions and their interpretation. In her opinion, Justice Selby did not reveal how she would undertake a broad exploration of the contours of Article I, Section 12 because she carefully limited her consideration to the issues necessary to resolve on narrow terms the case in front of the court.
The opinions in these five cases exhibit the influence of the three developments in American law and jurisprudence discussed above. (169) None of the opinions spoke of any law that exists apart from human positive law or discussed any right in terms of natural rights or rights antecedent to civil government (although Justice Selby's reference to lay concepts of justice and Justice Dickson's consideration of Magna Carta and Coke may open the door to sources that reflect such an understanding of law and rights). Many of the opinions reflected the ascendency of public law and legislation, which have modified the common law, displaced private law, and provided standards that regulate the relationship between government and citizens. Additionally, most of the opinions showed the dominant influence that federal law and jurisprudence (especially federal due process of law) has come to play in regulating state and local government and demonstrated the challenge of interpreting state constitutions as independent fundamental law in our federal republic today.
IV. HISTORICAL ANTECEDENTS OF THE STATE CONSTITUTIONAL REMEDIES PROVISION
Both the right to remedy by due course of law and the state constitutional provision recognizing that right have a rich history that extends back to Magna Carta. Among the key historical antecedents that inform the meaning of this right and this provision are Magna Carta, Sir Edward Coke's Second Part of the Institutes of the Laws of England, Sir William Blackstone's Commentaries on the Laws of England, and the first state constitutions adopted in the United States of America, which will each be examined here.
A. Magna Carta
In the twelfth and thirteenth centuries, the state and the church developed separate and autonomous institutions and bodies of law that coexisted, overlapped, and competed in the same communities. Secular law and ecclesiastical law alike, informed by divine revelation and shaped by reason and conscience, were thought to reflect the eternal law of God and the natural law. This allowed for the prospect that secular law could be brought into conformity with truth, justice, and equity. (170) During this same period, most lawyers, judges, and other professional advisors and officers in secular legal institutions were clerics who had some training in and familiarity with ecclesiastical law (canon law), and ecclesiastical law consequently provided a model that informed the development of secular law. (171)
In this context, the notion of the rule of law emerged as a dominant theme. Both the state and the church would rule by law, and each would have its own systems of law and legal institutions. Similarly, the heads of secular government and ecclesiastical government were understood to be governed by law, even if there were no person or persons higher than the king and the pope who could judge the acts of the king and the pope or depose them. (172) As English jurist Henry of Bracton (c. 1210-1268) famously observed, the king is under God and the law, and it is not the king who makes the law but the law who makes the king. (173) Additionally, the king himself was understood to be under a duty to obey the law, (174) which was grounded in "divine and natural justice" and in a higher "reality that transcended the existing structure of political power and political institutions." (175) Accordingly, the king's law could be judged against fundamental law and foundational precepts of justice, equity, conscience, and reason, all of which came from God and were divinely instituted. Nevertheless, the rule of law necessitated the development of more specific principles, rules, and applications, and even the recognition of basic rights. (176)
Magna Carta (the Great Charter) originated in this historical setting. On June 15, 1215, at Runnymede, English feudal barons and church officials compelled King John, who had recently lost military battles with foreign powers and an ecclesiastical struggle with Pope Innocent III and had strained relations at home by raising armies and taxes, to make various commitments in writing. In Magna Carta, which was sealed under oath by the king, the king recognized limits to his powers, acknowledged basic liberties and rights, and established certain principles. (178) The king made these commitments to "the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards and all his officials and faithful subjects." (179) His first commitment was that "the English church shall be free, and shall have its rights undiminished and its liberties unimpaired." (180)
Among the liberties of "all the free men of our realm" (181) recognized in Magna Carta by King John were the following:
39. 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 judgment of his peers or by the law of the land.
40. To no one will we sell, to no one deny or delay right or justice. (182)
The 1225 version of Magna Carta issued by Henry III combined these two separate chapters of the 1215 charter in the following one chapter:
29. No freeman shall be taken or imprisoned or disseised of any freehold, or liberties, or free customs,
or outlawed, or banished, or in any other way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment 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. (183)
The chapters are traceable to two earlier documents: the Unknown Charter of Liberties and the Articles of the Barons. The Unknown Charter, which Cardinal and Archbishop of Canterbury Stephen Langton may have played a role in drafting, reflected a higher law conception of law and justice, and it stated: "King John grants that he will not take a man without [prior] judgment, nor will he take anything for justice, nor will he do injustice." In contrast, the Articles of the Barons specified a series of self-serving demands, and it provided in part: "The body of a freeman shall not be taken, imprisoned, disseised, outlawed or exiled, or in any other manner destroyed, and the king shall not go or send against him by force, except by the judgment of his peers or by the law of the land." (185)
Together these provisions of Magna Carta "set a limit to the arbitrary use of the governing power" and required execution before judgment. (186) Chapter 39 of the 1215 Magna Carta and the first sentence of Chapter 29 of the 1225 Magna Carta prohibited the king and his agents from using force to capture, imprison, dispossess, outlaw, or banish a "freeman" except by the lawful judgment of his peers (who were to be of equal rank) or by the law of the land (which included the law of the king's courts, local customs, and other bodies of law in the realm). (187) In medieval England, lawyers understood the requirements of a lawful "judgment of peers" and by "the law of the land" to guarantee trial by lawful procedure and the reference to "the law of the land" to mean the common law. (188)
Chapter 40 of the 1215 Magna Carta and the second sentence of Chapter 29 of the 1225 Magna Carta had a different focus than Chapter 39 of the 1215 Magna Carta and the first sentence of Chapter 29 of the 1225 Magna Carta. According to Chapter 40 and the second sentence of Chapter 29, the king and his agents were not to sell, deny, or delay right (rectum) or justice (justiciam). (189) The charter's recognition of a right to "a pure and unbought measure of justice" (190) and its establishment of "the principle of free justice" (191) were especially important because of the writ system instituted in the royal courts by King Henry II (John's father). This system, which persisted under John, permitted the king to profit from litigation in the royal courts. As one scholar has noted, "[t]he system invited abuse; more expensive writs worked faster than cheaper ones, were more potent, and could achieve access to a more favorable forum." (192) Under the corruptly administered writ system, the royal courts, rather than dispensing justice, had become a means of profit for the king, and Magna Carta thus imposed an important restraint by prohibiting the king from selling, denying, or delaying justice.
B. Sir Edward Coke
In The Second Part of the Institutes of the Laws of England, which was first published in 1642, Sir Edward Coke (1552-1634) explored the meaning of Chapter 29 of the 1225 Magna Carta and provided commentary on the great charter, which was influential during the founding era of the United States. (193) Coke described this chapter as a "roote" out of which "many fruitfull branches of the law of England have sprung." (194) In Coke's view, nine different branches of English law stemmed from the words of Chapter 29, including six branches from the first sentence and three from the second sentence. (195)
Coke identified the following six "fruitfull" branches of English law that grew out of the first sentence of Chapter 29. (196) The first branch was that "no man may be taken or imprisoned, but per legem terrce [by the law of the land], that is, by Common Law, Statute Law, or Custome of England." (197) He explained that the words "by the Law of the Land" refer to all of the matters that are identified before them in the first sentence of Chapter 29 and that "the liberty of a man[']s person" (i.e., freedom from being taken or imprisoned) "is more precious to him" than the other threats to his liberty identified in the chapter. (198) The second branch was that no person
shall be disseised, that is, put out of seison, or dispossessed of his free-hold (that is) lands, or livelihood, or his liberties or free-customes, that is, of such franchises, and freedomes, and free-customes, as belong to him by his free birth right, unlesse it be by the lawful judgment, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and processe of law. (199)
The third branch was that no person could "be out-lawed, made an exlex, put out of the law, that is, deprived of the benefit of the law, unlesse he be out-lawed according to the Law of the Land." (200) The fourth branch was that no person could "be exiled, or banished out of his Country, that is, nemo perdet patriam, no man shall lose his country, unlesse he be exiled according to the Law of the Land." (201) The fifth branch was that no person could "be in any sort destroyed ([fore-judged of life or limb, disinherited, or put to torture or death]), unlesse it be by the verdict of his equals, or according to the Law of the Land." (202) The sixth branch was that no man could "be condemned at the King's suite, either before the King in his Bench, where the pleas are [in the presence of the king himself] ... nor before any other Commissioner, or Judge whatsoever, ... but by the judgment of his peers, that is, equals, or according to the Law of the Land." (203)
According to Coke, the following three fruitful branches of English law stemmed from the second sentence of Chapter 29. The seventh branch was that the king could "sell to no man Justice or Right." (204) The eighth was that the king could "deny to no man Justice or Right." (205) The ninth was that the king could "defer to no man Justice or Right." (206)
After stating his understanding of the words of Chapter 29, Coke explored interpretations given to them by various English authorities, (207) and his study of these interpretations provides additional insight into the meaning of these provisions of Magna Carta. The focus here, however, is on Coke's examination of interpretations of the seventh, eighth, and ninth branches, which emanate from the second sentence. These interpretations are most relevant to this Article's exploration of the right to remedy by due course of law and the state constitutional provision recognizing that right.
According to Coke, these three branches prohibited the sale, the denial, and the delay of right and justice, and they were "spoken in the person of the King, who in judgment of Law, in all of his Courts of Justice is present." (208) For Coke, these three branches meant that "every Subject of th[e] Realme, for injury done to him in [his goods, lands, and person], by any other Subject" (whether "Ecclesiasticall, or Temporall, Free, or Bond, Man, or Woman, Old, or Young," or "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 to him, freely without sale, fully without deniall, and speedily without delay." (209) Coke added that "justice must have three qualities" to be "both justice and right." First, justice ought to be unbought, because nothing is more hateful than venal justice. Second, it ought to be full, for it ought not to halt. Third, justice ought to be quick, for delay is a kind of denial. (210)
As for the denial or delay of justice and right, Coke noted that acts of Parliament had expounded these words. According to Coke, these requirements meant that "common right, or Common law should [not] be disturbed, or delayed" even if "commanded" by the king or some other official "under the Great seale, or Privie seal, order, writ, letters, message, or commandement whatsoever." (211) In such cases, judges must proceed "as if no such Writs, letters, order, message, or other commandement" had come to them. (212) Cognizant of the injustice that results from delay, Coke emphasized that "the common laws" should not be delayed because "the law is the surest sanctuaryH that any man can take" and "the strongest fortresse to protect the weakest of all." Even when the king brings his own suit, he should stay his own action and temporarily forbear receiving his fine, and thus neither interfere nor delay justice in another cause. (214) Coke also observed that courts may not delay justice when a person claims "protections" that are not properly established in law. (215)
Coke also explored the meaning of the terms "right" (rectum) and "justice" (justiciam) in Chapter 29 of Magna Carta. In Coke's estimation, the term "justice" referred to the end, and the term "right," which he took to mean law and understood to have the same sense as jus, referred to the means to attain justice. (216) Coke offered four points in support of his understanding of right or rectum as law. First, the law is "the right line" that guides and directs distributive justice, and justice and right are to be done "according to the rule of the law and custome of England" and according to "common right," which is also called "[c]ommon law." (217) Second, "[t]he law is called rectum" because the law discovers what is "tort, crooked, or wrong." (218) For Coke, right signifies law just as what is "tort, crooked, or wrong" signifies injury and what is contrary to right. (219) Third, the law "is called right" because the law "is the best birth-right" that any subject has to protect his "goods, lands, wife, [and] children" and his "body, life, honor, and estimation" from injury and wrong. (220) Fourth, rectum can also be understood as the right itself, which a person has by law. (221) Thus, according to Coke, neither the end (justice) nor the means of attaining that end (the right or the law) should be sold, denied, or delayed.
As noted above, the 1215 Magna Carta included two distinct chapters (Chapters 39 and 40) that became two distinct sentences in Chapter 29 of the 1225 Magna Carta. (222) These two sentences provided a basis for Coke to distinguish six branches of English law that sprung from the first sentence and three branches from the second sentence. In the following words, he summed up the meaning of the first six branches, which stemmed from the first sentence: "no man can be taken, arrested, attached, or imprisoned but by due process of law, and according to the law of the land." (223) It is apparent that the first sentence and the six branches that emanated from it were oriented toward criminal justice and punishment, the official actions of the king and his agents against persons and their properties, and the procedures and the law that were required (namely, the lawful judgments of peers and the law of the land) for those actions to be lawfully taken. (224) By contrast, the second sentence of Chapter 29 of the 1225 Magna Carta and Coke's final three branches were oriented toward civil justice, relations between subjects, and remedies in the king's courts for injuries to persons, property, and other interests. As the Oregon Supreme Court has explained, "Coke declared that the second sentence of Chapter 29 had evolved into a different kind of guarantee in English law, viz., one involving the rights of subjects in their private relations with one another." (225)
This study of Coke's Institutes shows that two distinct paths of common law development were identifiable in his influential seventeenth commentary on Chapter 29: (1) a "due process" path, which provided "a shield against arbitrary government actions involving a person's life, liberty, or property"; and (2) a "remedial" path, which provided "a guarantee to every subject that a legal remedy was available for injury to goods, lands, or person by any other subject of the realm." (226) Accordingly, modern due process doctrine in federal constitutional law is traceable to Coke's treatment of the first sentence of Chapter 29 and the six branches of English law he identified as stemming from that sentence, as well as an English statute of 1354 in which the term "due process of law" first appears. (227) However, the state constitutional provisions that include the Open Courts Clause, the Remedy Clause, and the Administration of Justice Clause are properly traced to Coke's treatment of the second sentence of Chapter 29 and the three branches of English law he identified as stemming from that sentence.
C. Sir William Blackstone
In his influential four-volume Commentaries on the Laws of England, which were originally published between 1765 and 1769, Sir William Blackstone (1723-80) recognized Magna Carta as "the great charter of [our] liberties," but he also expressed his belief that it contained "very few new grants" and mostly declared "the principal grounds of the fundamental laws of England." (228) In his Commentaries, he discussed Magna Carta in the broader context of his discussion of rights, including the right to remedy. Blackstone explained that the rights of persons are of two sorts: (1) absolute rights, which God gave to all individuals as a gift when he created humankind, and which they possess by virtue of being individuals or persons; and (2) relative rights, which are incidental to individuals as members of society who stand in relation to other members of society. (229)
In Blackstone's view, absolute rights belong to individuals in a state of nature, and individual persons possess them whether or not they live in society. (230) According to Blackstone, "the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities." (231) Consequently, "the first and primary end of human law is to maintain and regulate these absolute rights of individuals." (232) The purpose of human laws then is to explain, protect, and enforce absolute rights, which are few in number and simple and are founded on nature and reason. (233)
Although the absolute rights of humankind may be summed up under the general title of natural liberty, a part of which each person gives up when he or she enters into society, (234) Blackstone identified the following three absolute rights: the right of personal security; the right of personal liberty; and the right of private property. (235) The right of personal security consists of a person's enjoyment of his life, limbs, body, health, and reputation. (236) In his discussion of the right of personal security, Blackstone noted that English law and Magna Carta restricted the availability of punishment threatening life and limb and required that no person "be put to death, without being brought to answer by due process of law." (237)
The right of personal liberty consists of the power to move from place to place, to change one's situation, and to remove one's person to another place based upon one's own inclination. (238) This right of personal liberty includes the ability to do these things free from imprisonment and restraint, "unless by due course of law." (239) Likewise, Blackstone noted that Magna Carta prohibited any free person being taken or imprisoned but "by the lawful judgment of his equals, or by the law of the land," and that English law directed that no person could "be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of the common law." (240)
The right of private property consists of "the free use, enjoyment, and disposal of all [one's] acquisitions, without any control or diminution, save only by the laws of the land." (241) Blackstone noted that Magna Carta declared that no free person may "be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land." (242)
In Blackstone's view, these absolute rights would be "dead letters" if methods were unavailable to secure the "actual enjoyment" of them. (243) Consequently, the relative, auxiliary, or subordinate rights, which result from and are posterior to the formation of states and societies and are more numerous and more complex than the absolute rights, (244) serve as "barriers" that protect and maintain inviolate the three absolute rights, which he calls "the three great and primary rights." (245) Blackstone identified five auxiliary rights: (1) the constitution, powers, and privileges of parliament; (2) the limitations of the king's prerogative; (3) the right to apply to courts of justice for redress of injuries; (4) the right to petition the king or parliament for redress of grievances; and (5) the right to have arms for their defense. (246)
In discussing the third relative or auxiliary right (the right to remedy), Blackstone wrote: "Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein." (247) Blackstone also directly referenced the second sentence of Chapter 29 of the 1225 Magna Carta and Coke's commentary on that sentence, including Coke's treatment of the right of every subject to take "his remedy by the course of the law" for injury done to him in his goods, lands, or person by another subject and to have justice and right for the injury done to him. (248) In addition to noting that many "affirmative acts of parliament" direct that justice "be done according to the law of the land," Blackstone highlighted a few negative acts of parliament that restrained abuses, perversions, or delays of justice:
It is ordained by magna carta, that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By [two statutes] it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right. And by [another statute] it is declared, that the pretend power of suspending, or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. (249)
The right to remedy was further safeguarded by the prohibition against substantive law and court procedures being altered except by parliament. (250) Additionally, although the king could establish new courts, proceedings in those new courts were governed by "the old established forms of the common law." (251) Accordingly, questions regarding the lands and goods of subjects were to be "tried and determined in the ordinary courts of justice, and by course of law." (252) Blackstone observed that subjects "are entitled ... to the regular administration and free course of justice in the courts of law" "to vindicate [their absolute] rights" when they are "violated or attacked." (253)
Also fundamental to Blackstone's understanding was the distinction between public wrongs and private wrongs. Public wrongs, breaches of general and public rights that affect the whole community, were crimes and misdemeanors, and means were available in the laws of England to prevent and punish such wrongs. (254) Private wrongs, infringements of particular rights that concern only individuals, were civil injuries, and means were also available in the laws of England to redress such injuries by law. (25) 5 In discussing private wrongs ("such wrongs as may be committed in the mutual intercourse between subject and subject"), Blackstone wrote that "the king as the fountain of justice is officially bound to redress in the ordinary forms of law." (256) Here, Blackstone had basic notions of justice and right as well as tort, property, and contract law in view. He wrote:
Now, as all wrong may be considered as merely a privation of right, the one natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in dam ages; as in case of assault, breach of contract, &c: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury; though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the mirrour to be "the lawful demand of one's right:" or as Bracton and Fleta express it, in the words of Justinian, jus prosequendi in judicio quod alicui debetur [the form of prosecuting to judgment what is due to any one]. (257)
Blackstone then discussed "the several suits, or remedial instruments of justice," which may be distinguished into three types: personal actions, real actions, and mixed actions. (258) In Blackstone's view, "every species of remedy by suit or action in the courts of common law" may be classified under these three headings, (259) which led him then to consider the various types of injuries or civil wrongs that affect the absolute and relative rights of individuals and the various remedies for these injuries or wrongs "furnished by the law." (260)
Following a discussion of the actions that may be brought and the injuries that may be remedied in ecclesiastical, military, and maritime courts, Blackstone turned to the injuries cognizable by the courts of the common law. (261) He recognized that the common law courts of justice had broad jurisdiction to remedy "all possible injuries whatsoever, that did not fall within the cognizance of either the ecclesiastical, military, or maritime tribunals." (262) The wide-ranging cognizance of the common law courts was predicated, in Blackstone's view, on "a settled and invariable principle in the laws of England": "every right when with-held must have a remedy, and every injury it's [sic] proper redress." He then considered a remedy (i.e., a writ of mandamus) that is available when an inferior court that has proper cognizance of a cause delays and thereby refuses or neglects justice. (263)
In his Commentaries, Blackstone thus built on the foundation laid by Magna Carta and Coke. Although his discussion of absolute and relative rights and public and private injuries went beyond the text of Magna Carta and Coke's treatment of Chapter 29 of the 1225 Magna Carta, his Commentaries continued to reflect the two distinct paths--the "due process" path and the "remedial" path--that had developed from Magna Carta, Coke's treatment of Chapter 29 of the 1225 Magna Carta, and the branches of English law Coke traced back to that provision of Magna Carta.
D. Select Constitutions of the Original States
Magna Carta, Coke's Institutes, and Blackstone's Commentaries, which were known to colonists in America during the revolutionary period when they declared independence from Great Britain and its king, guided colonists in establishing separate states and a federal government, and drafting and approving the early state constitutions and the United States Constitution. (265) These influences were evident early on in the process of constitution-making in the early American republic, as the Virginia Constitutional Convention adopted the Virginia Declaration of Rights several weeks before the Declaration of Independence was signed on July 4, 1776, (266) and as other new states soon thereafter began to adopt their own constitutions and declarations of rights. (267)
In these early state constitutions and declarations of rights, the two distinct paths that stemmed from Magna Carta and were developed by Coke and Blackstone--the "due process" path and the "remedial" path--were evident. For instance, the Delaware Declaration of Rights, adopted on September 11, 1776, stated:
Sect. 10. That every member of society hath a right to be protected in the enjoyment of life, liberty and property....
Sect. 12. That every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land. (268)
On November 11, 1776, the delegates of Maryland adopted a Declaration of Rights, which was part of Maryland's new constitution, and it included the following provisions:
XVII. That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land.
XXI. That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land. (269)
Additionally, the Declaration of Rights adopted as part of the North Carolina Constitution on December 18, 1776, stated:
VIII. That no freeman shall be put to answer any criminal charge, but by indictment, presentment, or impeachment.
IX. That no freeman shall be convicted of any crime, but by the unanimous verdict of a jury of good and lawful men, in open court, as heretofore used.
XII. That no freeman out to be taken, imprisoned, or disseized of his freehold liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.
XIII. That every freeman, restrained of his liberty, is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed.
XIV. That in all controversies at law, respecting property, the ancient mode of trial, by jury, is one of the best securities of the rights of the people, and ought to remain sacred and inviolable. (270)
The Pennsylvania Constitution was adopted on September 28, 1776, and it also drew upon these sources and reiterated the same themes when it specified that "[a] 11 courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay." (271)
E. Fifth and Fourteenth Amendment to the United States Constitution
In 1791, the Fifth Amendment to the United States Constitution was ratified along with nine other amendments, and together
they comprise the federal Bill of Rights. (272) The Fifth Amendment states in relevant part that no person shall "be deprived of life, liberty, or property, without due process of law." (273) Under the United States Supreme Court's modern interpretation of this clause, this amendment restrains the federal government, protecting individuals against government conduct that "shock[s] the conscience" or interferes with rights "implicit in the concept of ordered liberty" (the substantive component), and ensures that federal government action that deprives a person of life, liberty, or property is implemented in a fair manner (the procedural component). (274)
The drafters of the Due Process Clause of the Fifth Amendment did not employ the precise language found in Magna Carta, which restrained arbitrary government action by requiring the government to act by the lawful judgment of peers or by the law of the land. (275) Instead, the drafters used the language "without due process of law," adopting Coke's interpretation that "the law of the land" was synonymous with "the due course, and process of law," (276) even though the phrase "due process of law" was a technical term used for the first time in an English statute of 1354 to require the king's council to comply with common law procedure injudicial proceedings. (277)
In 1866, the Fourteenth Amendment to the United States Constitution was ratified. The Due Process Clause of the Fourteenth Amendment, with language nearly identical to the Due Process Clause of the Fifth Amendment, states that no state shall "deprive any person of life, liberty, or property, without due process of law." (279) This clause applies to state and local governments, and the United States Supreme Court has interpreted it to require both states and local governments to comply with "the most important" restrictions in the federal Bill of Rights. (280) As with the Due Process Clause of the Fifth Amendment, the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a substantive component and a procedural component.
Several conclusions may be drawn from this exploration of the historical sources that recognized the right to remedy by due course of law and that are the antecedents of the state constitutional provisions recognizing that right. First, this right, which relates to justice between subjects when one private person injures another, is traceable from state constitutional texts back to the commentaries of Blackstone and Coke. From those sources, it is traceable to the second sentence of Chapter 29 of the 1225 Magna Carta, which expressed the king's commitment to ensure justice and honor the rights of his subjects by not selling, denying, or delaying justice or right to any subject. Coke's commentary on this second sentence shows that the terms "justice" and "right" used therein referred to justice and right in the private relations among subjects and the remedy provided by courts for the injury one subject suffers to his property, person, or reputation as a result of the wrongdoing of another. Thus, the Open Courts Clause, the Remedy Clause, and the Administration of Justice Clause in the state constitutional provisions recognizing this right relate primarily to private ordering and private law.
Second, the origin of the state constitutional provisions recognizing the right to remedy by due course of law is not found in the first sentence of Chapter 29 of the 1225 Magna Carta; rather, it is found in the second sentence and Coke's and Blackstone's commentaries on the second sentence. The first and second sentences of Chapter 29 have been distinct from the very beginning, and the commentaries of Coke and Blackstone amplified that distinction. It is to the first sentence that the Due Process Clauses are properly traced, for it restrained the king's ability to punish a subject by taking away life, liberty, and property and prohibited such deprivations, except by the lawful judgment of the subject's peers or the law of the land. In contrast to the second sentence's orientation toward private injuries and relations between individual subjects, the first sentence was oriented toward public injuries and the relationship between civil government and subjects.
Third, the right to remedy by due course of law was necessary to safeguard pre-political rights and to ensure that the end of justice was achieved in courts and in cases. In Magna Carta, the king committed himself, his officials, and his courts to honoring right and justice. Blackstone's Commentaries later showed that the laws of England had recognized several absolute rights and sought to safeguard them by also recognizing various auxiliary rights, including the right to remedy.
The right to remedy by due course of law remains an important right in Anglo-American law, and the study of the historical sources that have recognized and protected that right for centuries remains a worthwhile undertaking. The proper understanding of this right and the state constitutional provisions recognizing this right is a legitimate concern both for state legislatures that enact laws modifying the remedies available to litigants who have suffered private injuries and for state courts that review such legislation and interpret the state constitutional provisions that recognize the right to remedy.
Additionally, state supreme courts should revisit their precedents interpreting the state constitutional provisions that recognize this right, especially those precedents equating the state remedies provisions to the Due Process Clauses of the United States Constitutions. State supreme courts should be willing to do this as a matter of faithfulness to their state constitutions to ensure that they are correctly interpreting their constitutional texts and not importing doctrines and principles from federal due-process jurisprudence that are not properly a part of the right to remedy provision and the jurisprudence interpreting it.
Vt. Const. ch. 1, art. 4 ("Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformability to the laws."); W. Va. Const. art. 3, [section] 17 ("The courts of this state shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay."); Wis. Const. art. I, [section] 9 ("Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws."); Wyo. Const. art. I, [section] 8 ("All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.").
(1) King John signed Magna Carta on June 15, 1215. See infra Part III.A. From March 21 to 25, 1965, Martin Luther King, Jr. led thousands of nonviolent demonstrators in a march from Selma, Alabama, to the steps of the state capitol building in Montgomery, Alabama. This pivotal event led to the enactment of the Voting Rights Act, which was signed by President Lyndon B. Johnson on August 6, 1965.
(2) See infra Part III.
(3) See, e.g., Ala. Const, art. I, [section] 13 ("That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."); Ark. Const, art. II, [section] 13 ("Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws."); Colo. Const, art. II, [section] 6 ("Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay."); Conn. Const, art. I, [section] 10 ("All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."); Del. Const, art. I, [section] 9 ("All courts shall be open; and every person for an injury done him or her in his or her reputation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered according to the very right of the cause and the law of the land, without sale, denial, or unreasonable delay or expense. Suits may be brought against the State, according to such regulations as shall be made by law."); Fla. Const, art. I, [section] 21 ("The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."); Idaho Const, art. I, [section] 18 ("Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."); Ill. Const. art. I, [section] 12 ("Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly."); Ind. Const. art. I, [section] 12 ("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."); Kan. Const. Bill of Rights, [section] 18 ("All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."); Ky. Const. Bill of Rights, [section] 14 ("All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."); La. Const. art. I, [section] 22 ("All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."); Me. Const. art. I, [section] 19 ("Every person, for an injury inflicted on the person or the person's reputation, property or immunities, shall have remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay."); Md. Const. Declaration of Rights, art. 19 ("That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land."); Mass. Const. pt. I, art. 11 ("Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws."); Minn. Const. art. I, [section] 8 ("Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws."); Miss. Const. art. III, [section] 24 ("All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay."); Mo. Const. art. I, [section] 14 ("That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay."); Mont. Const. art. II, [section] 16 ("Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character.... Right and justice shall be administered without sale, denial, or delay."); Neb. Const. art. I, [section] 13 ("All courts shall be open, and every person, for any injury done him or her in his or her lands, goods, person, or reputation, shall have a remedy by due course of law and justice administered without denial or delay...."); N.H. Const. pt. I, art 14 ("Every subject of this State is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character, to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without any delay; conformably to the laws."); N.C. Const. art. I, [section] 18 ("All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay."); N.D. Const. art. I, [section] 9 ("All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct."); Ohio Const. art. I, [section] 16 ("All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law."); Okla. Const. art. II, [section] 6 ("The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."); Or. Const. art. I, [section] 10 ("No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."); Pa. Const. art. I, [section] 11 ("All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct."); R.I. Const. art. I, [section] 5 ("Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one's person, property, or character. Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws."); S.C. Const. art. I, [section] 9 ("All courts shall be public, and every person shall have speedy remedy therein for wrongs sustained."); S.D. Const. art. VI, [section] 20 ("All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay."); Tenn. Const. art. I, [section] 17 ("That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the state in such manner and in such courts as the Legislature may by law direct."); Tex. Const. art. I, [section] 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."); Utah Const. art. I, [section] 11 ("All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.");
(4) Several thoughtful studies explore the history of these state constitutional provisions. See, e.g., John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 WAKE FOREST L. Rev. 237 (1991); Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279 (1995); Jonathan M. Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers L.J. 1005 (2001); William C. Koch, Jr., Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997); Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. Rev. 1309 (2003); David Schuman, Oregon's Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35 (1986); David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197 (1992).
(5) See e.g., Cohen v. State ex. rel. Stewart, 89 A.3d 65, 86 (Del. 2014) ("Delaware constitutional due process [in Article I, [section] 9 of the state constitution] is coextensive with federal constitutional due process [in [section] 1 of the Fourteenth Amendment to the United States Constitution.]"); Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1258-59 (Del. 2011) ("Historically, the due process clause of the Delaware constitution has substantially the same meaning as the due process clause contained in its federal counterpart. The expression 'due process of law, as it appears in the Constitution of the United States, and the expression "law of the land" as used in the Delaware Constitution, have generally been held to have the same meaning.'") (citing Del. Const. art. I, [section] 9 and Helman v. State, 784 A.2d 1058, 1070 (Del. 2001), and quoting Opinion of the Justices, 246 A.2d 90, 92 (Del. 1968)); Indiana High Sch. Athletic Ass'n, Inc. v. Carlberg by Carlberg, 694 N.E.2d 222, 241 (Ind. 1997) ("The Due Process Clause and 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. The same analysis is applicable to both the federal and state claims."); Shook Heavy & Envtl. Constr. Grp., a Div. of Shook, Inc. v. City of Kokomo, 632 N.E.2d 355, 361 (Ind. 1994) ("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."); Arbino v. Johnson & Johnson, 880 N.E.2d 420, 433 (Ohio 2007) ("We have recognized [Article I, [section] 16, the 'due course of law' provision,] as the equivalent of the 'due process of law' protections in the United States Constitution."); State ex rel. Heller v. Miller, 399 N.E.2d 66, 67 (Ohio 1980) ("When read in conjunction with Sections 1, 2 and 19, [Article I] Section 16 is the equivalent to the Fourteenth Amendment's due process clause."); Quesnel v. Town of Middlebury, 706 A.2d 436, 439 (Vt. 1997) ("We have considered [Chapter I,] Article 4 [of the Vermont Constitution] the equivalent to the federal Due Process Clause.") (citing Levinsky v. Diamond, 559 A.2d 1073, 1086 (Vt. 1989)).
(6) See infra Part II.
(7) See infra Part III.
(8) See infra Part IV.
John Austin, The Province of Jurisprudence Determined 157 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832).
(9) Ronald Dworkin famously described legal positivism as "the ruling theory" in Anglo-American law. See Ronald Dworkin, Taking Rights Seriously vii-ix (1977). See also Matyas Bodig, Comment on Simmonds--Legal Positivism and the Limits of the Contemporary Legal Theoretical Discourse, 12 German L.J. 625, 627 (2011) ("Legal positivism is the dominant approach in contemporary conceptual legal theory. Its dominance is due to the decisive impact of legal positivists like Herbert Hart on the agenda and the internal norms of the contemporary discourse of legal theory."); David Millon, Positivism in the Historiography of the Common Law, 1989 Wis. L. Rev. 669, 870 n.3 ("Despite the challenges of the legal realists and more recent critics, positivism remains the dominant way of thinking about what law is and ought to be in the United States as well as in Great Britain."); Anthony J. Sebok, Misunderstanding Positivism, 93 Mich. L. Rev. 2054, 2055-56 (discussing the perception that legal positivism was the dominant jurisprudence or legal theory in America in the twentieth century).
(10) See Brian Bix, Jurisprudence: Theory and Context 33-34 (6th ed. 2012).
(11) John Austin, a leading legal positivist of the early nineteenth century, famously wrote:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
(12) BIX, supra note 10, at 33.
(13) See H.L.A. Hart, The Concept of Law 239 (2d ed. 1994) ("My aim in this book was to provide a theory of what law is which is both general and descriptive."); Jules L. Coleman & Brian Leiter, Legal Positivism, in A Companion to Philosophy of Law and Legal Theory 225, 228 (Dennis Patterson ed., 22 ed. 2010) ("All positivists share the following two central beliefs: first, that what counts as law in any particular society is fundamentally a matter of social fact or convention ('the social thesis'); second, that there is no necessary connection between law and morality ('the separability thesis')."). See also Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 75 (2001); Brian Leiter, Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis, in Hart's Postscript: Essays on the Postscript to The Concept of Law 355, 356 (Jules Coleman ed., 2001).
(14) Bix, supra note 10, at 34.
(15) See Jeremy Bentham, Anarchical Fallacies, in Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man 52-53 (Jeremy Waldron ed., 1987) ("[T]here are no such things as natural rights--no such things as rights anterior to the establishment of government--no such things as natural rights opposed to, in contradistinction to, legal: ... the expression is merely figurative;... when used in the moment you attempt to give it a literal meaning it leads to error, and to that sort of error that leads to mischief--to the extremity of mischief.... That which has no existence cannot be destroyed--that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,-- nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems any one of which any government can, upon any occasion whatever, abrogate the smallest particle."). See also Oliver Wendell Holmes, Jr., Letter to Harold Laski (July 23, 1925), in The Essential Holmes 142 (Richard A. Posner ed., Univ. of Chi. Press 1992) (stating that he takes "no stock in abstract rights, believing instead that rights are human constructs that must be defended and enforced if they are to exist at all in a practical sense").
(16) See Jonathan Wolff, Robert Nozick:, Property, Justice, and the Minimal State 24 (1991) (discussing Bentham's view that rights "are given by law" and that "[t]he only rights that make sense, then, are legal rights, created by the law of man, and divine rights, if one accepts the existence of a divine law-giver"); Antonio E. Perez Luno, Natural Law Theory in Spain and Portugal, 22 IUS Gentium 135, 145-46 (2013) ("[I]t is much harder and less convincing to explain the scope of the term 'derechos' (rights) in the expression 'derechos humanos' (human rights) from positivist premises than from a Natural Law background. This is due to the fact that Positivism is a monist theory and therefore it only attributes legal character to positive Law. Prom this perspective, talking about any natural, human, moral or pre-normative right, as something different from positive law constitutes a contradictio in terminis. Natural Law theory, as a dualist legal theory, distinguishes two different normative systems: a Natural Law conformed by a compound of values prior to positive law that must ground, guide and critically limit every legal regulation; and positive law, established or imposed by the binding force of those holding the power in society. They are 'rights' with a diverse deontic status but with no independence, because every natural right tends to be positivised and every positive right, as long as it pretends to be fair, must follow Natural Law. Natural Law has had the persistent historical function of establishing limits to power."). Such a heightened focus on human positive lawmaking prevails whether one (like the positivist Hart) embraces the claim/will/choice theory of rights (understanding rights as the power or ability of the right-holder to choose) or whether one (like the positivist Bentham) embraces the interest/benefit theory of rights (understanding rights as a certain kind of legally protected interest). See Bix, supra note 10, at 21-22, 136-37. Bix has highlighted that the theoretical dispute between will theorists and interest theorists has implications for the ordering of society. Id. at 137 (citing Nigel Simmonds, Rights at the Cutting Edge, in Matthew H. Kramer et al., A Debate over Rights: Philosophical Enquiries 113-232 (1998)). Bix wrote:
[W]ill theories are grounded in a Kantian picture of society, in which principles of justice and the rules of society can be derived from Reason, and all citizens have equal rights. Public law is a small realm of collective choice, to be sharply distinguished from private law, where the choices of autonomous citizens were to be respected and enforced. By contrast, ... interest theories reflect a vision that denies that all interests can be reconciled and rendered mutually consistent, and it thus must be left to positive law-making to impose a reasonable ordering of interests.
(17) See Michael I. Krauss, Regulation Masquerading as Judgment: Chaos Masquerading as Tort Law, 71 Miss. L.J. 631, 634-35 (2001) ("Public law, regulating relationships between citizens and the state, is all the rage. Constitutional litigation makes headlines, as it should.... It is curious, though, that in a free society like ours private law issues are not more widely recognized as vital. For private law (roughly, rules regulating the allocation of rights and obligations among citizens) and private ordering (the possibility for people to self-determine their rights through private law) are arguably what distinguishes free societies from totalitarian ones. All countries have public law institutions. But only in free countries does private law dominate the acquisition and exchange of rights. Private law does this by allowing citizens to transfer entitlements (i.e., to assume risks) voluntarily through contract law, and involuntarily for two reasons: when one's choices wrongfully cause harm to another (tort law), and when blood or other family ties impose obligations.").
(18) See Ernest J. Weinrib, The Idea of Private Law 1, 5, 8, 19 (1995) (describing private law as "connecting] two particular parties through the phenomenon of liability," arguing for the complete autonomy of private law, and observing that private law attends to justice between parties rather than to some social goal or public policy); Barry E. Adler, The Law of Last Resort, 55 Vand. L. Rev. 1661, 1661-62 (2002) ("The traditional bodies of [private] law that compose private ordering are the laws of property, contract, and tort. Property law establishes private entitlements that can be specifically enforced against the world. Contract law permits individuals to exchange obligations and thus invest one another with entitlements. Tort law creates its own set of entitlements and imposes liability for unwanted interference with those or other entitlements."); Lan Cao, Looking at Communities and Markets, 74 Notre Dame L. Rev. 841, 841 n.2 (1999) ("Because the public/private distinction emerged from the notion that there is a separate and distinct private order, private law was deemed law that protected 'pre-political rights.... Private law, then, was that part of the legal system protecting the private ordering; public law consisted of government compulsions restricting private freedom.... Under that definition, property law, tort law, and contract law may be considered examples of private law, and labor law and constitutional law public law.") (quoting and citing Daniel A. Farber & Philip P. Frickey, In the Shadow of the Legislature: The Common Law in the Age of the New Public Law, 89 Mich. L. Rev. 875, 886-87 (1991)); Cao, supra ("Private lawmaking ... arises from an array of autonomous institutions, communities, and groups. During the Middle Ages in Europe and prior to the rise of a central authority, private associations had a significant degree of autonomy to make rules and to conduct themselves in accordance with the custom of their associations."); Michael I. Krauss, A Medical Liability Toolkit, Including ADR, 2 J.L.: PERIODICAL LABORATORY OF Leg. Scholarship 349, 353 (2012) ("Private law (roughly, rules regulating the allocation of rights and the sharing of risks among citizens) and private ordering (the possibility for people to 'self-determine' through interaction amongst themselves) are in fact arguably what distinguish free societies from totalitarian ones. All countries have public law institutions--prisons and police and legislatures of some kind. But only in free countries is the private law of contract, property, tort, and family law the principal way to acquire and exchange rights and obligations. Private law does this by allowing citizens to transfer entitlements (and to assume risks) voluntarily (through contract law) or involuntarily in one of two ways: when one's choices wrongfully cause harm to another (tort) or through blood or marriage ties (family law). Most of us will never have a serious run-in with the police or with any government agency. But all of us interact daily in the private sphere--we work, we buy, we sell, we parent families, and sometimes we 'collide' with others doing the same thing."); Michael I. Krauss, Tort Law and Private Ordering, 35 St. Louis U. L.J. 623, 626 (1991) ("Contract law is ... all about voluntary obligations, or limits on liberty, which are necessary if liberty is to be satisfactorily consummated.... Like contract law, tort law results from voluntary acts.... Also like contract law, tort law produces legal obligations. Courts force both tortfeasors and recalcitrant contractual debtors to sacrifice their property or part of their liberty.").
(19) See Cao, supra note 18, at 841 n.2 ("[S]tate or public lawmaking ... [is] the process by which centralized law is made, for example, the top-down enactment of statutes or the issuance of regulations and decrees. The source of law is the state."); Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. Pa. L. Rev. 1423, 1424 (1982) (explaining that although "there were earlier anticipations of a distinction between public law and private law, only the nineteenth century produced a fundamental conceptual and architectural division in the way we understand the law. One of the central goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal, and regulatory law--public law--and the law of private transactions--torts, contracts, property, and commercial law."); Krauss, supra note 17, at 352-53 ("Public law is that subset of our legal system that regulates rights and obligations between citizens and the state. Various types of public law are, in essence, common knowledge. Constitutional litigation (where citizens attack executive and legislative action that is allegedly in breach of our higher law) makes headlines. Judicial attitudes toward public law dominate confirmation hearings. Criminal trials (where governments sue citizens for breach of conduct) are also prime-time fodder. Notwithstanding this valid interest in public ordering, however, in a free society private law issues are more vital.") (emphasis in original); Roscoe Pound, Public Law and Private Law, 24 Cornell L. Rev. 469, 470 (1939) (observing that, in Roman law, "private law had to do with adjusting the relations ... and determining the controversies between man and man, while public law had to do with the frame of government, the functions of public officials, and adjustment of relations between individuals and the state").
(20) See Guido Calabresi, A Common Law for the Age of Statutes 1 (1982) ("The last fifty to eighty years have seen a fundamental change in American law. In this time we have gone from a legal system dominated by the common law, divined by courts, to one in which statutes, enacted by legislatures, have become the primary source of law."); Abner J. Mikva & Eric Lane, An Introduction to Statutory Interpretation and the Legislative Process xv (1997) ("We live in an age of statutes in which the nation's legislatures serve actively as the dominant institutions for determining public policy and translating it into law.") The United States Code has grown to fifty-two separate titles, and the states have their own legislative codes.
(21) See, e.g., Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982) (describing the genesis and growth of federal administrative agencies); Kenneth F. Warren, Administrative Law in the Political System 41 (4th ed. 2004) (showing the growth of federal agencies over nearly two hundred years); J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 Geo. L.J. 757, 769-75 (2003) (using different metrics to measure the vast volume of rules promulgated by federal agencies and to assess whether "there's too much law"); States also have a sizeable complement of administrative agencies and administrative codes that collect agency rules. Indiana is a fairly representative state. See, e.g., In.gov, Find an Agency, http://www.in.gov/core/find_agency.html, and Indiana Administrative Code, http://www.in.gov/legislative/iac/.
(22) In an array of cases, the Supreme Court of the United States has approved broad delegations by Congress of rulemaking authority to administrative agencies. See e.g., Whitman v. Am. Trucking Assocs., Inc. 531 U.S. 457 (2001) (to the Environmental Protection Agency); Touby v. United States, 500 U.S. 160 (1991) (to the Attorney General); Industrial Union Dept., AFL-CIO v. Am. Petroleum Institute, 448 U.S. 607 (1980) (to the Occupational Health and Safety Administration). The Court has also approved delegations of adjudicative authority to administrative agencies. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986); Crowell v. Benson, 285 U.S. 22 (1932) (to the United States Employees' Compensation Commission).
(23) See Butz v. Economou, 438 U.S. 478, 526-27 (1978) (Rehnquist, J., concurring in part and dissenting in part) ("The steady increase in litigation, much of it directed against governmental officials and virtually all of which could be framed in constitutional terms, cannot escape the notice of even the most casual observer."); Ruggero J. Aldisert, Judicial Expansion of Federal Jurisdiction: A Federal Judge's Thoughts on Section 1983, Comity and the Federal Caseload, 1973 L. & SOC. Ord. 557, 563 (noting the "deluge" of post-Monroe [section] 1983 filings and a 1,110% increase in cases brought under [section] 1983 between 1960 and 1970); Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 COLUM. L. Rev. 670, 696 (2011) ("Given the sweep of [section] 1983--creating liability for '[e]very' official who 'subjects, or causes to be subjected' any person within the United States to a deprivation of federal rights--and given the Warren Court's concurrent project of substantially expanding substantive constitutional and statutory rights, the effect of [Monroe v. Pape, 365 U.S. 167 (1961),] was dramatic. Federal courts saw significant increases in case filings under [section] 1983 following Monroe, a phenomenon that attracted the notice of legal and political forces that perceived this remedial expansion as placing a significant, and perhaps unwarranted, burden on the federal courts.").
(24) See Erwin Chemerinsky, Ending the Parity Debate, 71 B.U. L. Rev. 593, 597 (1991) ("The Warren Court generally expanded the scope of constitutional rights."); Rebecca E. Zietlow, The Judicial Restraint of the Warren Court (and Why It Matters), 69 Ohio St. L.J. 255, 257 (2008) ("The many 'activist' rulings of the Warren Court expanding individual rights and the jurisdiction of federal courts are the paradigmatic example of courts protecting the rights of minorities.... There is another side to the Warren Court legacy--that Court's deference towards congressional power. In a series of landmark decisions articulating its deference to Congress, the Warren Court invited and encouraged popular constitutionalism, enabling members of Congress to use their own judgment in defining and protecting minority rights. Indeed, the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights.").
(25) See Chemerinsky, supra note 24, at 596 ("During the 1950s and 1960s, the Supreme Court substantially expanded the application of federal constitutional rights against state and local infringement through the process of incorporation.").
(26) William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 536 (1986) [hereinafter Brennan, The Bill of Rights and the States] ("The vehicle for th[e] dramatic development [of binding the states to almost all of the restraints in the federal Bill of Rights] was the Fourteenth Amendment. [It] ... protect[s] each of us from the employment of governmental authority in a manner contravening out national conceptions of human dignity and liberty. This country has been transformed by the standards, promises, and power of the Fourteenth Amendment."); William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 490 (1977) [hereinafter Brennan, State Constitutions] ("Over the past two decades, decisions of the Supreme Court of the United States have returned to the fundamental promises wrought by the blood of those who fought our War between the States, promises which were thereafter embodied in our fourteenth amendment--that the citizens of all our states are also and no less citizens of our United States, that this birthright guarantees our federal constitutional liberties against encroachment by governmental action at any level of our federal system, and that each of us is entitled to due process of law and the equal protection of the laws from our state governments no less than from our national one.").
(27) For a comprehensive survey of federal and state laws prohibiting employment discrimination, see Lex K. Larson, Employment Discrimination (2d ed.). Among the federal acts prohibiting employment discrimination are the Age Discrimination in Employment Act of 1967, 29 U.S.C. [section] [section] 621-634, Title VII of the Civil Rights Act of 1964, 42 U.S.C. [section] [section] 2000e-2000e-17, and the Americans with Disabilities Act of 1990, 42 U.S.C. [section][section] 12101-12213.
(28) See Craig Anthony (Tony) Arnold, Conserving Habitats and Building Habitats: The Emerging Impact of the Endangered Species Act on Land Use Development, 10 Stan. Envtl. L.J. 1, 2-3 (1991) ("Centralization of land use regulatory powers is an ongoing, or at least recurring, process that has seen considerable progress among state governments as a necessary response to local inabilities to adequately address regional land use planning issues (e.g., transportation, affordable and integrated housing, spatially uniform economic development, and location of unwanted land uses). Centralization of land use controls has not been limited to the states; the federal government also now exercises considerable power over land use decisions through a variety of environmental statutes and regulations, such as the Clean Air Act, the Water Pollution Control Act, the solid waste disposal statutes, the Coastal Zone Management Act, and the National Environmental Protection Act, and through the range of federal programs that provide hydroelectric projects, airports, deep water ports, highways, bridges, housing, national parks, water and waste facilities, soil conservation programs, and mineral and grazing rights.").
(29) Two federal acts prohibiting discrimination in housing are the Fair Housing Act of 1968, 42 U.S.C. [section] [section] 3601-3619, and the Fair Housing Amendments Act of 1988, 42 U.S.C. [section] [section] 3601-3619, 3631.
(30) Many states enacted legislation in the 1980s and 1990s reforming their product liability law based upon the Model Uniform Product Liability Act, which was developed by the United States Department of Commerce, or other model acts. Victor E. Schwarts, Phil Goldberg, & Cary Silverman, Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drugs Has Severe Side Effects, 81 Fordham L. Rev. 1835, 1861 (2013) (citing Model Uniform Product Liability Act, 44 Fed. Reg. 62,714 (Oct. 31, 1979), and Model Product Liability Act (Am. Legis. Exch. Council 1995)).
(31) See 1 Bruce Ackerman, We the People: Foundations 42 (1991) ("[T]he 1930's mark the definitive constitutional triumph of activist national government."); James J. Fishman, Stealth Preemption: The IRS's Nonprofit Corporate Governance Initiative, 29 Va. Tax Rev. 545, 578 (2010) ("The American political system's major twentieth century development was the growth of federal power, particularly federal administrative action, at the expense of traditional state authority. Federal regulators moved into areas once traditionally considered matters of state law...."); James A. Gardner & Jim Rossi, Foreword, The New Frontier of State Constitutional Law, 46 Wm. & Mary L. Rev. 1231, 1232-33 (2005) (after the Warren Court's expansive reading of individual rights, "state constitutional law was seen, not illogically, as in some fundamental way subordinate to national constitutional law").
(32) The Federalist No. 51 (James Madison) ("In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."); The Federalist No. 28 (Alexander Hamilton) ("Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government."); U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it."); Texas v. White 74 U.S. 700, 725 (1868) ("Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people.... Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."). Although the federal government and the state governments are sovereigns in our system of government, the people at all times remain sovereign in our constitutional traditions, and they have the indefeasible power to reform their governments. See U.S. Const. preamble ("We the People of the United States ... do ordain and establish this Constitution for the United States of America."); U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."); Ind. Const. preamble (1851) ("WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution.")', Ind. Const. art. I, [section] 1 ("[A]ll power is inherent in the People," "all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being," and "[f]or the advancement of these ends, the People have, at all times, an indefeasible right to alter and reform their government."). See also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819) ("The government of the Union, then ..., is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.").
(33) See, e.g., Ind. Const. art. III, [section] 1 ("The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial."); Ind. Const. art. IV, [section] 1 ("The Legislative authority of the State shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives."); Ind. Const. art. V, [section] 1 ("The executive power of the State shall be vested in a Governor."); Ind. Const. art. VII, [section] 1 ("The judicial power of the State shall be vested in one Supreme Court, one Court of Appeals, Circuit Courts, and such other courts as the General Assembly may establish.").
(34) See, e.g., U.S. Const. art. I, [section] 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."); U.S. Const. art. II, [section] 1 ("The executive Power shall be vested in a President of the United States of America."); U.S. Const. art. III, [section] 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").
(35) See G. Alan Tarr, Understanding State Constitutions 7-8 (1998) ("[S]tate governments have historically been understood to possess plenary legislative powers--that is, those residual legislative powers not ceded to the national government or prohibited to them by the federal Constitution. As the Kansas Supreme Court has observed: 'When the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby.' State governments are not restricted in the purposes for which they can exercise power--they can legislate comprehensively to protect the public welfare--and because of this, state constitutional interpretation cannot proceed in terms of a state government's 'important objects' and 'minor ingredients.'") (quoting State ex rel. Schneider v. Kennedy, 587 P2d 844, 850 (Kan. 1978), and McCulloch, 17 U.S. (4 Wheat.) at 407); Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 178 (1983) ("State constitutions are usually contrasted with their federal counterpart by characterizing the former as limits on governmental power rather than grants of power. When the Union was formed, the states retained almost plenary government power exercised primarily by their legislatures. This power was limited only to the extent that the states granted powers to the federal government, agreed to restrictions on state power in the Federal Constitution, or imposed limitations on themselves in their own constitutions."). See also Alden v. Maine, 527 U.S. 706, 714 (1999) ("The federal system established by our Constitution preserves the sovereign status of the States ... [by] reserving] to them a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status.").
(36) See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2578 (2012) ("[T]he Constitution is not the source of the power of [the States], ... [W]here [federal constitutional] prohibitions [or restrictions on state governments] do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government--punishing street crime, running public schools, and zoning property for development, to name but a few--even though the Constitution's text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the 'police power.'"). See also Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (stating that "the structure and limitations of federalism ... allow the States "'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'"") (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985)); Clem v. Christole, Inc., 582 N.E.2d 780, 782-83 (Ind. 1991) (quoting Brack v. State ex rel. Money, 91 N.E.2d 349, 352 (Ind. 1950)) (stating that the police power of the state is "'the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society.'").
(37) See Sebelius, 132 S.Ct. at 2578 (2012) ("The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions."). The following constitutional provisions set forth some of these enumerated powers: U.S. Const. art. I, [section] 8, cl. 1 (the power to lay and collect taxes and to provide for the common defence and general welfare of the United States); U.S. Const. art. I, [section] 8, cl. 3 (the power to regulate commerce with foreign nations and among the several states); U.S. Const. art. I, [section] 8, cl. 4 (the power to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States); U.S. Const. art. I, [section] 8, cl. 5 (the power to coin money); U.S. Const. art. I, [section] 8, cl. 8 (the power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries); U.S. Const. art. I, [section] 8, cl. 11 (the power to declare war); U.S. Const. art. II, [section] 2, cl. 2 (the power to make treaties); U.S. Const. art. III, [section] 2, cl. 1 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; [and to other specified cases]."). The Tenth Amendment reinforces the implication of the Constitution's enumeration of particular powers--powers not delegated remain with the people and the states. See U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."). See also United States v. Morrison, 529 U.S. 598, 639 (2000) (Souter, 1, dissenting) (recognizing that "the general police power" was "conferred under the state constitutions but never extended to Congress under the Constitution of the Nation"); United States v. Lopez, 514 U.S. 549, 567 (1995) (observing that congressional authority under the Commerce Clause is not "a general police power of the sort retained by the States"); McCulloch, 17 U.S. at 405 (1819) ("This government is acknowledged by all, to be one of enumerated powers.").
(38) Brennan, State Constitutions, supra note 26, at 503 ("[O]ne of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens."); id. at 491 ("[S]tate 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 Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law--for without it, the full realization of our liberties cannot be guaranteed."). See also Robert F. Williams, The Law of American State Constitutions (2009); Rosalie Berger Levinson, Commentary, First Monday--The Dark Side of Federalism in the Nineties: Restricting Rights of Religious Minorities, 33 Val. U. L. Rev. 47, 50 (1998) ("Although the Framers [of the United States Constitution] did express concern that a national system not invade and swallow up state sovereignty, they also envisioned a system whereby individual rights would enjoy double protection--under state and federal constitutions and in state and federal courts.").
(39) Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 336 (2011) ("Incorporation, combined with the Warren Court's expansive reading of the federal rights that were being incorporated, effectively sidelined state constitutional law. States could continue to read their constitutions however they pleased-- many had already recognized the rights that were being incorporated against them, but the Supremacy Clause required them to treat the federal guarantees as a 'floor' beneath which state rights could not fall.... [S]ince relatively few state courts were inclined to read rights more broadly than the Warren Court, the Federal Reporter effectively displaced state constitutions. Any litigant with a modicum of litigation savvy knew to put federal claims front and center, meaning that state court decisions were increasingly ignored by litigants and scholars alike. And many state courts, knowing that federal rights were so expansive, tended to resolve cases on the basis of federal guarantees rather than state analogues. The result was an atrophying of state constitutional interpretation."); Christian G. Fritz, Foreword, Out from Under the Shadow of the Federal Constitution: An Overlooked American Constitutionalism, 41 Rutgers L.J. 851, 856 (2010) ("[T]he prevailing sense remains that events at the state level are of little significance for understanding American constitutionalism, and there are three circumstances that reinforce that general viewpoint: first is the natural pre-eminence of the Federal Constitution in the wake of the historical growth of federal power and the expansion of federal constitutional rights; second is the denigration of the importance of the first post-revolutionary state constitutions; and third is the failure to appreciate that the different shape and content of modern state constitutions does not detract from the importance of the traditions that have developed in their formation and amendment."); Hans A. Linde, State Constitutions Are not Common Law: Comments on Gardner's Failed Discourse, 24 Rutgers L.J. 927, 936 (1993) (criticizing the "ingrained assumption" that "attention to the constitutional law of a state ... is for ambitious professors and law review editors a distinctly minor league game"); Monrad G. Paulsen, State Constitutions, State Courts and First Amendment Freedoms, 4 Vand. L. Rev. 620, 620 (1951) ("State court decisions and state constitutional materials are too frequently ignored by both commentator and counsel when civil liberties questions arise.").
(40) Brennan, State Constitutions, supra note 26, at 491 ("Supreme Court decisions under the fourteenth amendment have significantly affected virtually every other area, civil and criminal, of state action."); id. at 493 ("It was in the years from 1962 to 1969 that the face of the law changed. Those years witnessed the extension to the states of nine of the specifics of the Bill of Rights; decisions which have had a profound impact on American life, requiring the deep involvement of state courts in the application of federal law."); Brennan, The Bill of Rights and the States, supra note 26, at 540 ("In the years between 1961 and 1969, the Supreme Court interpreted the Fourteenth Amendment to nationalize civil rights, making the great guarantees of life, liberty, and property binding on all governments throughout the nation. In so doing, the Court fundamentally reshaped the law of this land."); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 805 (1992) ("By far the most widely accepted explanation for the poverty of contemporary state constitutional law holds that it was marginalized by the Fourteenth Amendment incorporation doctrine.").
(41) See Erwin Chemerinsky, Constitutional Law: Principles and Policies 230 (2d ed. 2002) ("[A]fter 1937, the Supreme Court accorded Congress broad authority to regulate under constitutional provisions such as the commerce clause, the spending power, and the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments). For example, ... from 1937 until 1995, not a single federal law was declared unconstitutional as exceeding the scope of Congress's commerce power. Undoubtedly, the Supreme Court's expansive interpretation of congressional authority was, in part, based on a perceived need for a strong national government to deal with the problems of the twentieth century and, in part, a reaction to the intense criticism of the earlier decisions that had sharply limited the scope of federal powers."); Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387, 1443 (1987) ("The New Deal cases systematically removed each of the previous limitations on the scope of the commerce clause. This expansion of federal power was not driven by any textual necessity. Instead, it is better understood, but hardly justified, as a response to two separate but related forces. First, the 1936 Roosevelt mandate and the prospect of court packing could hardly have been lost on the Court. Second, a narrow majority of the Court was in sympathy with the dominant intellectual belief of the time that national problems required national responses. The New Deal cases worked a revolution in constitutional theory as well as in textual interpretation.").
(42) See Stephen Breyer, Regulation and Its Reform 1 (1982) ("Beginning in the mid-1960s the number of federal regulatory agencies and the scope of regulatory activity vastly expanded."); Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 459-60 (Foundation, 6th ed. 2009) ("In the more than fifty years since the First Edition was published, the expansion of federal legislation and administrative regulation ... has accelerated; today one finds many more instances in which federal enactments supply both right and remedy in, or wholly occupy, a particular field. This same period has witnessed a broad extension of federal laws (constitutional and statutory) that protect individual rights and provide remedies for violations thereof. Thus, at present federal law appears to be more primary than interstitial in numerous areas.").
(43) Oliver Wendell Holmes, Jr. may have reflected this sentiment as well as anyone in the twentieth century. He wrote:
At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition.... The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened skepticism, that is, towards a deliberate reconsideration of the work of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 468-69 (1897).
(44) See Andrew J. Wistrich, The Evolving Temporality of Lawmaking, 44 Conn. L. Rev. 737, 752-91 (2012).
(45) U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
(46) See Brennan, State Constitutions, supra note 26, at 502. For instance, the United States Constitution protects such rights as the right to bear arms, U.S. CONST, amend. II, the right to be free of unreasonable searches and seizures, U.S. Const. amend. IV, and the right not to be subjected to cruel and unusual punishments, U.S. Const. amend. VII, as do many state constitutions. See, e.g, Ind. Const. art. I, [section] 11 ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."); Ind. Const. art. I, [section] 16 ("Cruel and unusual punishments shall not be inflicted."); Ind. Const. art. I, [section] 32 ("The people shall have a right to bear arms, for the defense of themselves and the State.").
(47) See Robert F. Utter & Sanford E. Pitler, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind. L. Rev. 635 (1987); Robert F. Williams, State Constitutional Methodology in Search and Seizure Cases, 77 Miss. L.J. 225 (2007).
(48) Williams, supra note 47, at 239-41 (citing the important work of Flans A. Linde in support of this approach, supra note 39); Utter & Pitler, supra note 47, at 647-48.
(49) Williams, supra note 47, at 241-42; Utter & Pitler, supra note 47, at 648-51.
(50) Williams, supra note 47, at 242-43 (discussing the dual sovereignty approach as advocated by Washington State Supreme Court Justice Robert Utter); Utter & Pitler, supra note 47, at 651-52.
(51) Williams, supra note 47, at 249-51; Utter & Pitler, supra note 47, at 645-46.
(52) Williams, supra note 47, at 244-49.
(53) Brennan, State Constitutions, supra note 26, at 491, 495-98.
(55) See, e.g., Randall T. Shepard, The Maturing Nature of State Constitutional Jurisprudence, 30 Val. U. L. Rev. 421 (1996); G. Alan Tarr, The Past and Future of the New Judicial Federalism, 24 Publius: J. Federalism 63 (Spring 1994); Robert F. Williams, The Third Stage of the New Judicial Federalism, 59 N.Y.U. Ann. Survey. Am. L. 211 (2003); Robert F. Williams, Foreword: Looking Back at the New Judicial Federalism's First Generation, 30 Val. U. L. Rev. xiii (1996).
(56) See Jane B. Baron, Law, Literature, and the Problems of Interdisciplinarity, 108 Yale L.J. 1059, 1071 (1999) ("The preeminent issue for hermeneutic law-and-lits has been power: Who or what 'controls' the meaning of a text--the author, the reader, the words of the text, conventions of reading? Beyond a tendency to approach this issue by focusing on a single legal text, the U.S. Constitution, the hermeneutic law-and-lits have found little on which to agree. Intentionalists clash with deconstructionists on one side and textualists on the other."); Gretchen A. Craft, Note, The Persistence of Dread in Law and Literature, 102 Yale L.J. 521, 524 n.7 (1992) ("The application of literary criticism to legal works has generated numerous debates, as questions which preoccupy twentieth century literary critics now plague legal scholars as well: What does it mean to interpret a text? Can there be any meaning outside the reader's mind? What is the relationship between the words on the page and the original author's intent? The interpretation of the Constitution is at the heart of the debate, because its status as the central text of American law highlights the tension between the indeterminacy of language and the need for a common ground of understanding.").
(57) Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519, 535(2012).
(58) For a collection of state constitutions that include a provision recognizing this right, see supra note 3.
(59) Ind. Const, art. I, [section] 12(1851).
(60) See supra note 3.
(61) A slightly different version of this provision appeared in the Bill of Rights of the Indiana Constitution of 1816. It included an Open Courts Clause, a Remedies Clause, and an abbreviated Administration of Justice Clause. The 1816 provision read as follows: "That all Courts shall be open, and every person, for an injury done him, in his lands, goods, person, or reputation shall have remedy by the due course of law; and right and justice administered without denial or delay." Ind. Const, art. I, [section] 11 (1816).
(62) Ind. Const, art. I, [section] 1 (1851). The Declaration of Independence of 1776 declared: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Declaration of Independence para. 2 (U.S. 1776). The Fifth Amendment, ratified in 1791, provides in relevant part that no person "shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. The Fourteenth Amendment, ratified in 1868, provides in relevant part that no State "shall deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, [section] 1.
(63) For a summary of the different approaches taken by the justices in these cases, see infra Part III.F.
(64) Shook Heavy & Envtl. Constr. Grp., a Div. of Shook, Inc. v. City of Kokomo, 632 N.E.2d 355 (Ind. 1994).
(65) Id. at 357-60.
(66) Id. at 360-62.
(67) Id. at 360-61.
(68) Id. at 361.
(69) Shook, 632 N.E.2d at 361 (quoting Rice v. Scott Cnty. Sch. Dist., 526 N.E.2d 1193, 1196-97 (Ind. Ct. App. 1988)).
(70) Id. The court's earlier rulings were issued in the 1970s, 1980s, and 1990. The cases asserting federal due process claims were the following: Stewart v. Fort Wayne Cmty. Schs., 564 N.E.2d 274, 280 (Ind. 1990); Kellogg v. City of Gary, 562 N.E.2d 685, 693 (Ind. 1990); Marion Cnty. Sheriffs Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d 235, 239 (Ind. 1989); Speckman v. City of Indianapolis, 540 N.E.2d 1189, 1193 (Ind. 1989); and Wilson v. Rev. Bd. of Ind. Emp. Sec. Div., 385 N.E.2d 438, 443 (Ind. 1979). The
case asserting a generic due process claim was City of Mishawaka v. Stewart, 310 N.E.2d 65, 68 (Ind. 1974).
(71) Shook, 632 N.E.2d at 361.
(72) Id. at 361-62.
(73) Indiana High Sch. Athletic Ass'n, Inc. v. Carlberg by Carlberg, 694 N.E.2d 222 (Ind. 1997). The high school student also alleged that the Association's rules violated the Equal Protection Clause of the Fourteenth Amendment and the Equal Privileges and Immunities Clause of the Indiana Constitution (Ind. Const, art. I, [section] 23).
(74) Id. at 243.
(75) The court concluded that the Association's rule did not violate the federal Equal Protection Clause or the Indiana Equal Privileges and Immunities Clause. Id. at 236-40. In Carlberg, the court reiterated that the analysis under the Indiana Equal Privileges and Immunities Clause differs from the analysis under the federal Equal Protection Clause. Id. at 239-40 (citing Collins v. Day, 644 N.E.2d 72 (Ind. 1994)).
(76) Id. at 241 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950), and Howard v. Incorporated Town of N. Judson, 661 N.E.2d. 549, 553 (Ind. 1996)).
(77) Id. (citing Shook, 632 N.E.2d at 361). Justice Sullivan was the author of the court's opinion in Shook. See supra Part III.A.
(78) Carlberg, 694 N.E.2d at 241-42.
(79) Id. at 243, 247. Relying on the court's decision in Collins, of which he was the author, Justice Dickson stated his view that one of the Association's rules violated the Indiana Equal Privileges and Immunities Clause. Id. at 246-47.
(80) Id. at 247.
(83) Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446 (Ind. 1999). In the New York Times case, the United States Supreme Court held that the First Amendment requires "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
(84) Bandido's, 712 N.E.2d at 469.
(85) Id. at 450-51,454-57, 461-64, 467-68.
(86) Id. at 452. See also id. at 451-54 (discussing Aafco Heating & Air Conditioning Co. v. Nw. Publ'ns, Inc., 321 N.E.2d 580 (Ind. Ct. App. 1974)).
(87) Id. at 450-52. In his interpretive approach to state constitutional provisions, Justice Sullivan displayed a favorable tendency toward federal constitutional jurisprudence. After his distinguished tenure of service on the Indiana Supreme Court that spanned nearly twenty years, Justice Sullivan received a faculty appointment at Indiana University's Robert H. McKinney School of Law, where his work in the field of state constitutional law continues. He has written:
The advocates of [the Renaissance in State Constitutional Law] direct their harshest scorn at judges who interpret parallel state and federal constitutional provisions in accordance with federal constitutional analysis. Their claim is that state constitutional analysis that no more than mirrors federal, that no more than marches in lock-step with it, fails to recognize the independent] significance] of state constitutions. Now at least a quarter-century into the Renaissance, not many voices are raised in defense of "lock-stepism." ... But I want to raise a note of caution. States should not take a different approach from the federal in interpreting a parallel state constitutional provision solely for the sake of taking a different approach.
Frank Sullivan, Jr., A Look Back: Developing Indiana Law Post-Bench Reflections of an Indiana Supreme Court Justice: Selected Developments in the Indiana Constitutional Law (1993-2012), 47 Ind. L. Rev. 1217, 1220 (2014). He has offered three "reasons why mirror interpretation often makes sense," cautions against "result-driven decision-making," and adds that his argument should not "be taken as an unequivocal defense of lock-stepism" but a recognition that "categorical rejection of lock-stepism goes too far." Id. at 1220-21.
(88) See Aafco Heating & Air Conditioning Co., 321 N.E.2d 580.
(89) Bandido's, 712 N.E.2d at 469.
(91) Id. at 471.
(93) Bandido's, 712 N.E.2d at 471.
(94) Id. at 472.
(95) Id. at 490-91.
(96) Id. at 491.
(97) Id. at 483 ("When confronted with a choice between alternative common law policies, this Court will find guidance in the values embodied in our state constitution, particularly [Article I, [section] 12] assuring remedy for injury to reputation.") (citing Bals v. Verduzco, 600 N.E.2d 1353, 1355 (Ind. 1992)). See also id. at 480-89.
(98) Bandido 's, 712 N.E.2d at 483-84. These provisions also guaranteed remedy for injury to lands, goods, and person (the 1816 Constitution) and to person and property (the 1851 Constitution).
(99) See Journal of the Convention of the Indiana Territory, 1816 (1816), reprinted in 61 Ind. Mag. Hist. 77 (1965); Report of the Debates and Proceedings of the Convention for the Revision of the Constitution for the State of Indiana (Wm. B. Burford Printing Co. 1935) (1850) (2 volumes); Journal of the Convention of the People of the State of Indiana (reprint 1936) (1851).
(100) Bandido's, 712 N.E.2d at 484.
(102) Id. (citing David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1199 (1992)).
(103) Id. (quoting Faith Thompson, Magna Carta: Its Role in Making of the English Constitution, 1300-1629, at 365 (1948) (quoting Sir Edward Coke, Second Institute 55-56 (4th ed. 1671))).
(104) Id. at 485-86.
(105) Bandido's, 712 N.E.2d at 486.
(107) Id. (quoting Ind. Const, art. I, [section] 9).
(108) Id. at 487.
(109) Id. at 489.
(110) Bandido's, 712 N.E.2d at 489.
(111) Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999). The court also determined that the statute of limitations violated the Indiana Equal Privileges and Immunities Clause (Article I, [section] 23). Id. at 1279-82. In reaching that conclusion, the court applied the analytical methodology adopted by the court in Collins, which is distinct from the methodology employed in analyzing federal equal protection claims. Id. at 1280.
(112) Id. at 1285.
(113) Id. at 1282.
(115) Id. at 1282-83.
(116) Id. at 1283.
(117) Martin, 711 N.E.2d at 1283.
(122) Martin, 711 N.E.2d at 1284 (quoting Chaffin v. Nicosia, 310 N.E.2d 867, 870 (Ind. 1974)).
(125) Id. at 1285. He also believed that precedent foreclosed the plaintiffs argument that the statute of limitations violated Article I, [section] 23. Id.
(127) Martin, 711 N.E.2d at 1286.
(128) McIntosh v. Melroe Co., a Div. of Clark Equip. Co., 729 N.E.2d 972 (Ind. 2000). The court also held that the statute of repose does not violate the Indiana Equal Privileges and Immunities provision (Art. I, [section] 23). Id. at 980-84. In reaching that conclusion, the court applied the two-part Collins test, id. at 981-83, which is distinct from the standards that apply under the federal Equal Protection Clause.
(129) Upon graduating from law school in 1963, Justice Boehm served as a law clerk to Chief Justice Earl Warren of the United States Supreme Court. See Justice Biographies: Justice Theodore R. Boehm, http://www.in.gov/judiciary/citc/2833.htm. During the period of Chief Justice Warren's leadership (from 1953 to 1969), the United States Supreme Court dramatically expanded civil rights, judicial power, and federal power and applied these expanded rights to state and local governments by incorporating them through the Due Process Clause of the Fourteenth Amendment. See generally Michal R. Belknap, The Supreme Court Under Earl Warren, 1953-1969 (2005); Morton J. Horwitz, The Warren Court and the Pursuit of Justice (1998); Bernard Schwartz, The Warren Court: A Retrospective (1996); Mark Tushnet, The Warren Court in Historical and Political Perspective (1993). See also supra Part II.B and II.C.
(130) McIntosh, 729 N.E.2d at 984.
(131) McIntosh, 129 N.E.2d at 984.
(132) Id. at 974.
(133) Id. (citing Journal-Gazette Co. v. Bandido's, Inc. 712 N.E.2d 446, 484 (Ind. 1999) (Dickson, J., dissenting)). In his dissenting opinion in Bandido's, Justice Dickson made a slightly different point than the one Justice Boehm attributed to him. After quoting the text of Article I, [section] 12 as found in the 1851 Constitution and the 1816 Constitution, Justice Dickson stated: "We find no record of the intentions of Indiana's framers in either 1816 or 1851 with respect to this provision." Bandido's, 712 N.E.2d at 484. See supra Part III.C.
(134) McIntosh, 729 N.E.2d at 974-75 (citing Carlberg, 694 N.E.2d at 241; White v. State, 497 N.E.2d 893, 897 n.4 (Ind. 1986); Bd. of Zoning Appeals v. La Dow, 153 N.E.2d 599, 601 (Ind. 1958); Dean v. State ex rel. Bd. of Medical Registration & Examination, 116 N.E.2d 503, 506 (1954); Paul v. Walkerton Woodlawn Cemetery Ass'n, 184 N.E. 537, 540 (Ind. 1933)).
(135) McIntosh, 729 N.E.2d at 975 (citing Calberg, 694 N.E.2d at 241).
(138) Id. at 976.
(140) McIntosh, 729 N.E.2d at 975-76.
(141) Id. at 975-76.
(142) Id. at 976.
(144) McIntosh, 729 N.E.2d at 976 n.2 (citing cases).
(145) McIntosh, 729 N.E.2d at 976.
(146) Id. at 978-79.
(147) Id. at 979-80.
(148) Id. at 976.
(149) McIntosh, 729 N.E.2d at 977-78.
(150) Id. at 984. Justice Sullivan also agreed with Justice Boehm that the statute of repose did not violate the Indiana Equal Privileges and Immunities Clause (Art. I, [section] 23). Id. at 985.
(151) McIntosh, 729 N.E.2d at 984 (citing Dague v. Piper Aircraft Corp., 418 N.E.2d 207; State v. Rendleman, 603 N.E.2d 1333, 1336-37 (Ind. 1992)).
(152) McIntosh, 729 N.E.2d at 984-85.
(153) Id. at 985-90.
(154) Id. at 985.
(155) Id. at 985-86.
(156) Id. at 986.
(158) Id. at 986-87.
(159) McIntosh, 729 N.E.2d at 986 (emphasis in original).
(161) Id. at 987 (citing 2 Bouvier's Law Dictionary 436 (14th ed. 1878)).
(162) McIntosh, 729 N.E.2d at 987 (emphasis in original).
(164) Id. at 98S (quoting Maynes v. Moore, 16 Ind. 116, 122 (Ind. 1861) (quoting Story's Com. [section] 1379)).
(165) McIntosh, 729 N.E.2d at 988 (quoting State ex rel. Reichert v. Youngblood 73 N.E.2d 174, 179 (Ind. 1947), and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)). The Marbury quote continues: '"One of the first duties of government is to afford that protection.'" McIntosh, 729 N.E.2d at 988.
(166) Id. at 988.
(167) Id. at 989.
(168) Id. at 990.
(169) See supra Part II.
(170) Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 273 (1983).
(171) Id. at 274.
(172) Id. at 292.
(173) Henry of Bracton, 2 De Legibus Et Consuetudinibus Angilae (On the Laws and Customs of England) 33 (Samuel E. Thome ed., Harvard Univ. Press 1968) (1268). Bracton wrote:
The king has no equal within his realm. Subjects cannot be the equals of the ruler, because he would thereby lose his rule, since equal can have no authority over equal, nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king ... for there is no rex where will rules rather than lex. Since he is the vicar of God, And that he ought to be under the law appears clearly in the analogy of Jesus Christ, whose vicegerent on earth he is.
(174) Berman, supra note 170, at 293.
(175) Id. at 294.
(176) Id. at 293.
(177) A.E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America 2, 6 (1968).
(178) William F. Swindler, Magna Carta: Legend and Legacy 317-19 (1965).
(179) J.C. Holt, Magna Carta 317 (1969). In Appendix IV of his classic study of Magna Carta, Holt provided both the original Latin text of the 1215 Magna Carta and an English translation. Id. at 313-37.
(180) Id. at 317.
(182) Id. at 327.
(183) Swindler, supra note 178, at 316-17.
(184) W. at 75-76, 317.
(185) Id. at 75, 317.
(186) Id. at 319; see also Holt, supra note 179, at 226-27, 229.
(187) Swindler, supra note 178, at 319-20.
(188) Id. at 320.
(189) Holt, supra note 179, at 326, 355.
(190) 2 William Holdsworth, A History of English Law 215 (1903).
(191) Holt, supra note 179, at 191 (noting that this principle was well-known and was also specified in the metropolitan decrees of Archbishop Stephen Langton of 1213-14, the decrees that royal adviser and Archbishop Hubert Walter promulgated as legate at York in 1195, and the first synodal decree of the monk and bishop Hugh of Lincoln of 1186).
(192) David Schuman, Oregon's Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L Rev. 35, 37 (1986) (citing William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 395-98 (2d ed. 1914)).
(193) Edward Coke, The Second Part of the Institutes of the Laws of England 45-56 (Brooke 5th ed. 1797).
(194) Id. at 45.
(196) Because this Article focuses on the right to remedy and the state constitutional provision recognizing that right, a full treatment of these six branches is beyond the scope of this Article's treatment.
(197) Id. at 45.
(199) Coke, supra note 193, at 45-46.
(200) Id. at 46.
(204) Coke, supra note 193, at 46.
(207) Coke undertook first to convey the meaning of the words, id. at 45-46, and then to survey the interpretations of the words given by "authority of parliament," "our books," and "precedent," id. at 46-56.
(208) Id. at 55.
(209) Coke, supra note 193, at 55.
(210) Id. Coke's actual statement on this point is as follows: "Hereby it appeareth, that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet claudicare; et celeris, quia dilatio est quaedam negatio; and then it is both justice and right." Id.
(214) Coke, supra note 193, at 55-56.
(215) Id. at 56.
(219) Coke, supra note 193, at 56.
(222) See supra Part IV. A.
(223) Coke, supra note 193, at 52.
(224) Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 341 (Or. 2005) ("The dominant theme in Coke's commentary on the first sentence of Chapter 29 was his explanation that the law protected individuals' rights by prohibiting official acts depriving freemen of life, liberty, or property unless done according to 'the law of the land' or by judgment of peers. Proceedings 'by the law of the land' meant 'by the common law, statute law, or custome of England,' 'by the due course, and process or law,' or 'by due process of the common law.").
(225) Id. (italics omitted).
(226) Id. at 342.
(227) See Keith Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law, 19 Am. J. Legal Hist. 265,266 (1975).
(228) 1 William Blackstone, Commentaries on the Laws of England *123-24 [hereinafter 1 William Blackstone],
(229) Id. at *119-21.
(230) Id. at *119.
(231) Id. at *120.
(233) 1 William Blackstone, supra note 228, at *120-21,123.
(234) Id. at *121.
(235) Id. at *125.
(237) Id. at *129-30.
(238) 1 William Blackstone, supra note 228, at *130.
(240) Id. at *131.
(241) Id. at *134.
(243) 1 William Blackstone, supra note 228, at *136.
(244) Id. at *120-21.
(245) Id. at *136.
(246) Id. at *136-39.
(247) Id. at *137.
(248) 1 William Blackstone, supra note 228, at *137.
(249) Id. at *137-38.
(250) Id. at *138.
(253) Id. at *140.
(254) 1 William Blackstone, supra note 228, at *118.
(255) Id. at *118.
(256) 3 William Blackstone, Commentaries on the Laws of England at *115-16 [hereinafter 3 William Blackstone].
(257) Id. at *116.
(258) Id. at *117.
(259) Id. at *118.
(260) Id. at *118-43.
(261) Id. at *86-109.
(262) 3 William Blackstone, supra note 256, at *109.
(264) Id. at *109-11.
(265) See Ryan Patrick Alford, The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens, 2011 Utah L. Rev. 1203, 1220-53; Koch, supra note 4, at 348, 349-75.
(266) Va. Const. Decl. of Rights (1776).
(267) See Randy J. Holland, State Constitutions: Purpose and Function, 69 Temp. L. Rev. 989, 989-90 (1996).
(268) Del. Const. Decl. of Rights [section][section] 10,12 (1776).
(269) Md. Const. Decl. of Rights art. XVII, XXI (1776).
(270) N.C. Const. Decl. of Rights art. VIII, IX, XII, XIII, XIV (1776).
(271) Pa. Const. Plan or Frame of Government [section] 26 (1776).
(272) U.S. Const, amend. V.
(274) United States v. Salerno, 481 U.S. 739, 746 (1987).
(275) See supra Parts IV. A, IV.B., and IV.C.
(276) See supra Part IV.B. See also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 428-34 (2010); Robert E. Riggs, Substantive Due Process in 1791, 1990 Wis. L. Rev. 941, 999-1000. This Article does not attempt to resolve the debate whether the "law of the land" language in Magna Carta as interpreted by Coke and Blackstone applied only to judicial proceedings or also extended to legislative action. This Article is instead concerned with showing the distinction between the "due process" path and the "remedial" path that is traceable back through Blackstone and Coke to Magna Carta.
(277) Jurow, supra note 227, at 271.
(278) U.S. Const, amend. XIV.
(279) U.S. Const, amend. XIV, [section] 1.
(280) Oliver v. United States, 466 U.S. 170, 186 n.3 (1984).
(281) Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).
Michael J. DeBoer, Associate Professor of Law, Faulkner University, Thomas Goode Jones School of Law. The author served Indiana Supreme Court Justice Brent E. Dickson as a law clerk from 1998 to 2000, and he is thankful to Justice Dickson for sharing his passion for Indiana constitutional law with the author. The author also had the privilege of teaching Indiana constitutional law over a six-year period at Valparaiso University School of Law. The author thanks the Faulkner Law Review for the invitation to present an earlier version of this Article at its symposium conference, which was entitled From Magna Carta to the Montgomery March: The Career of Rights in the Anglo-American Legal Tradition, and which was held on September 11-12, 2014 in Montgomery, Alabama.
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|Title Annotation:||III. Five Indiana Supreme Court Cases Interpreting the Indiana Right to Remedy Provision D. Martin v. Richey through IV. Conclusion, with footnotes, p. 166-196; 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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