Court access is a hallmark of the Anglo-American legal system, with Magna Carta itself broadly providing for the right.1 The U.S. and Louisiana Constitutions provide the contemporary backdrop for formal, statutory IFP enactments. Scholars have read into the federal constitution a right of access to the court system—the so-called “right to a remedy”—through the First Amendment2 and the Due Process3 and Equal Protection4 Clauses of the Fourteenth Amendment.
Although the U.S. Constitution provides a general framework for court access,5 states have gone further to make access an assurance. Along with thirty-nine other states,6 Louisiana specifically inscribes the right to court access in its constitution: “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.”7 This provision’s placement in Article I of the Louisiana Constitution is significant for two reasons. First, court access is tied to Louisiana’s due process protections.8 Second, the provision—along with the remainder of rights declared in Article I—is not expressed as a grant from the state sovereign, but as a recognition of an individual right: “The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.”9 As an inalienable right, a litigant’s access to the court cannot be stripped. IFP protections secure that right.
- 1Chapter 29 of the 1225 Magna Carta states: No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice. Magna Carta ch. 29 (trans. Nicholas Vincent, Nat’l Archives & Records Admin, n.d.) (1225).
- 2See Benjamin Plener Cover, The First Amendment Right to a Remedy, 50 U.C. Davis L. Rev. 1741, 1747 (2017) (arguing that the First Amendment’s Petition Clause “includes the limited right of a person who suffers legal injury (or a sufficient threat thereof) to obtain a minimally adequate remedy from the courts”).
- 3See Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to A Remedy Under Due Process, 41 San Diego L. Rev. 1633, 1634 (2004) (positing that “the right to a remedy is a fundamental right” secured by the Due Process Clause); John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to A Law for the Redress of Wrongs, 115 Yale L.J. 524, 529 (2005).
- 4Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L.J. 507, 566–68 (1991).
- 51 Jennifer Friesen, State Constitutional Law § 6-1 n.1 (3d ed. 2000) (“It is unclear, outside the criminal context, to what extent the Federal Constitution requires the states to assure meaningful access to courts to enforce ordinary civil claims.”).
- 6See Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U.L. Rev. 1309, 1310, n.6 (2003) (“The most widespread and important of these unique state provisions is probably the guarantee of a right of access to the courts to obtain a remedy for injury.”).
- 7La. Const. art. I, § 22.
- 8Id. art. I, § 2 (“No person shall be deprived of life, liberty, or property, except by due process of law.”).
- 9Id. art. I, § 1.