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IN-DEPTH
in anyway, nor ... will [the
government] proceed with
force against him, or send
others to do so, except by the
lawful judgment of his equals
or by the law of the land.” The
5th and 14th Amendments to
the U.S. Constitution embrace
this concept—restraining our
government from depriving
any person “of life, liberty, or
property, without due process
of law.” The founding fathers
of the Tennessee Constitution
adopted this same principle
but chose different language;
article I, section 8 of our
constitution provides that no
person “shall be taken or imprisoned or disseised of his freehold, liberties or privi- leges, or outlawed, or exiled, or any in any manner destroyed or deprived of his life, liberty or property but by the judgment of his peers or the law of the land.” Despite the difference in language, our courts have repeatedly held that the “law of the land” clause used in our state constitution is synonymous with due process under the Federal Constitution.
Because due process, absent a place in our governmental structure to address grievances, is no entitlement at all, our founders included article I, section 17, addressing open courts: “[T]hat 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 process of law, and right and justice administered without fail, denial, or delay.” The role of the bench and bar to recognize this important right has Bib- lical proportions. The Book of Proverbs (31:8-9) reminds our profession of the duty to administer justice regardless of ability to pay: “Open thy mouth for the mute, for the rights of all who are desti- tute. Open thy mouth, judge righteously, and plead the case of the poor and needy.” Two landmark cases from the U.S.
2 5 U.S. 137 (1903).
3 372 U.S. 335 (1963).
of Adams’ Secretary of State, Federalist John Marshall, ended before he could make all of the deliveries. Upon taking office, Jefferson and his new Secretary of State, Democratic-Republican James Madison, declared the undelivered commissions void. Marbury filed suit in the Supreme Court for a writ of mandamus—an order that would have required Secretary Madison to deliver his commission. By the time the Supreme Court delivered its opinion in 1803, Secretary Marshall had become Chief
Justice Marshall. The high Court, in an opinion authored by the Chief Justice (apparently this was before recusal be- came an ethical duty) rendered a unan- imous decision, holding that Marbury, while entitled to the commission, had no remedy because the Act of Congress authorizing a writ of mandamus violated the Federal Constitution. The decision has been criticized on several grounds but still stands for the principle that the Court has the ultimate power to review and interpret congressional acts and strike down those violative of the terms of the U.S. Constitution. A more subtle effect is that our nation’s courts must remain open to the people for dispute resolution—even when the dispute is with the other branches of government.
Gideon v. Wainwright3 and Progeny While critically important, simply
opening the courts is not enough. A level of expertise is essential for the appropriate resolution of disputes. In the adversarial system, the effective assistance of counsel is fundamental
to a right and just result. Because this issue of Cityview is dedicated to those attorneys who make the system work, I would be remiss if I failed to address the
“The Book of Proverbs (31:8-9) reminds our profession of the duty to administer justice regardless of ability to pay: “Open thy mouth for the mute, for the rights of all who are destitute. Open thy mouth, judge righteously, and plead the case of the poor and needy.”
Supreme Court illustrate the important roles of the bench and bar in maintaining access to the courts for all people.
Marbury v. Madison2
Our founding fathers believed that
the best way to avoid oppression in government was to separate and balance the powers among the three branches. Marbury v. Madison was the first case
to address the boundaries of authority among the three branches. The story should be familiar to every attorney, if not every American. Democratic-Repub- lican Thomas Jefferson defeated Federal- ist incumbent John Adams in the 1800 presidential election. During the “lame duck” period before Jefferson took office, the Federalist majority in Congress reduced the number of Supreme Court justices from six to five and increased
the number of circuit courts, thereby permitting Adams to appoint numerous “midnight judges.” William Marbury of Maryland, chosen to serve in the District of Columbia, was among those judges appointed in the last days of the Adams administration. Although the appoint- ments were timely, the law required personal delivery of the commission—no easy task in those days. In fact, the term
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CITYVIEWMAG.COM JULY AUGUST 2015