Blog of the International Journal of Constitutional Law

Comparative Access to Justice

— Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School

Access to justice is one of the more widely recognized privileges in constitutional law and international human rights today. All of the most progressive and contemporary constitutions and human rights instruments recognize some form of it. The South Africans, the Germans, the Indians, the Canadians, and many others all grant a specific right of access to the courts to protect basic human rights, or authorize an individual to file a basic human rights complaint in a constitutional court, or both. And the Universal Declaration and every regional human rights instrument recognize either a right to access the courts for a violation of basic human rights, the right to a remedy, or both. But access to justice is conspicuously absent from the United States Constitution. The document fails to mention it even once.

Sure, the due process clauses and other procedure-based provisions guarantee some rights that seem like close cousins of a right to access. And the Supreme Court has read into the document a weak version of the right, for example banning fee barriers to the courts for poor people litigating fundamental rights. But these piece-meal protections only create a loose patch-work right to access. They are nothing like the full-throated fundamental right to access stated plainly in the text of the more modern constitutions and international human rights instruments.

This might seem surprising. That’s because there is a strong history of the right to access in the U.S. constitutional tradition. That history starts with the so-called “open courts” provisions in Magna Carta. These provisions—Chapters 39 and 40 in the original document, and Chapter 29 in a subsequent version—contained an early version of the right to access, guaranteeing that courts would remain open and justice freely dispensed to remedy wrongs. Coke, Penn, Blackstone, and others widely read by early Americans wrote about the right to access; and open-courts clauses, modeled on Chapter 29 of Magna Carter, appeared in six of the original thirteen state constitutions. One of the earliest Chief Justices and certainly the most important, Chief Justice John Marshall, drew on this right in a key passage in the most important court decision in U.S. history, Marbury v. Madison. Today, forty of fifty state constitutions contain an open-courts clause. Still, there’s no strong right to access in U.S. constitutional law.

This omission matters. U.S. courts of late have dismissed a spate of civil lawsuits growing out of the so-called “war on terror.” The claims deal with everything from torture to extraordinary rendition to violations of privacy. The U.S. courts have shut many of these cases down, deferring to one or another government defense rooted in separation-of-powers principles. The typical defense, in plain language, says that the courts have no business interfering in these national security matters—matters left to the executive branch alone. Without a strong right to access, the plaintiffs in these suits have no constitutional principle to counter-balance the government’s separation-of-powers claims. And the courts have no reason to consider the counter-veiling constitutional value of access to the courts. The net result is an executive trump card on civil suits to protect basic human rights anytime national security is involved.

To see this, let’s compare two cases, one from the United States and the other from the United Kingdom. In the first, Binyam Mohamed, a suspected terrorist or someone with knowledge of terrorists, sued Jepessen Dataplan, Inc., in U.S. federal court for Jepessen’s role in his extraordinary rendition at the hands of the U.S. government. The government moved to intervene in the case and to dismiss it, claiming that the “state secrets” privilege prevented the courts from hearing any claim that would require evidence that could put national security at risk. The U.S. Court of Appeals for the Ninth Circuit agreed with the government’s undifferentiated and sweeping claim, and dismissed the case—without a word about Mohamed’s right to access the courts to redress his injuries.

In the second case, Binyam Mohamed—the very same one—sued the U.K. government under a similar theory in the United Kingdom. The government, like the U.S. government, moved to dismiss the case based on “public interest immunity”—a theory very similar to the U.S. government’s state-secrets theory. But in the U.K. case, the Court of Appeals balanced the assertion of immunity against Mohamed’s interest in “open justice”; and it ruled that Mohamed’s interest outweighed the government’s interest in its claim of public interest immunity. In short, Mohamed’s interest in open justice kept his case alive against the government’s claim of immunity.

Together these cases illustrate the power of access to justice: it can give a claimant a remedy for a violation of fundamental underlying human rights where no other remedy exists. Like most rights, however, it is not absolute. The U.K. Court of Appeals’ approach to balance Mohamed’s interest in access to justice against the government’s claim of immunity is typical. But even so, at the end of the day, Mohamed would get his day in the U.K. courts—and wouldn’t in the U.S.


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