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Chipping at the core of justice: our law promises every litigant one bite at the apple. The Supreme Court, apparently conscious of Adam's fateful chomp, has been doing its best to keep civil rights claimants from getting theirs.

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The Supreme Court has been limiting Americans' ability to seek remedies in court. In doing so, the Court has eroded important principles of the Constitution and of the common law that undergirds it.

Worse, the Court's jurisprudence has infected doctrine in the states. (1) Their own constitutions often give state courts broader jurisdiction, more robust powers, and a greater role in checking legislative power than federal courts have.

Recent Supreme Court decisions reflect a dangerous attitude: that legislative action deserves close judicial scrutiny when it expands remedies and great judicial deference when it contracts them, especially when claims against state actors are involved. These decisions are loosely tethered to constitutional text and untethered to core constitutional values. They invert the "invariable principle ... that every right, when withheld, must have a remedy, and every in jury its proper redress." (2)

Providing remedies for wrongs is a primary purpose of government. The fundamental role of the courts in fulfilling it is being decried and diminished. Bearing witness to this phenomenon is a first step in setting Supreme Court jurisprudence right.

The common law principle that there is a remedy for every wrong is rooted in the Magna Carta. (3) It is ubiquitous in American law, explicit in the texts of 38 state constitutions, (4) and implicit elsewhere. (5) This principle states a "remedial imperative" of the common law: If government does not provide redress for wrongs, society might fall apart. (6)

That is not an overstatement. We usually think of "rights" as limitations on government action. It is important to remember why we have government in the first place. In the state of nature, there was no neutral arbiter to prevent my neighbor's cattle from eating my crops, or to provide redress if they did. Getting an arbiter was of primary importance. Trespass motivated negotiation of the social contract.

While providing forgiveness for trespass is outside the scope of civil law, this nation recognized--at least since Marbury v. Madison--that providing redress is a duty of government: "The 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. One of the first duties of government is to afford that protection." (7)

The First Amendment Petition Clause protects the right of citizens to call on the government to perform this duty. (8) It specifically protects the right to call on courts to perform the duty. A draft of the First Amendment included only a right to petition the "legislature" for redress of grievances. Later, that was broadened to include the right to petition the "government," including the courts. (9)

The Supreme Court has held...

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