Amdt5.7.9 Right of Access to Federal Courts and Substantive Due Process

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Many of the Supreme Court’s cases on due process and the right of access to courts have arisen under the Fourteenth Amendment.1 The Court has held that, in limited circumstances, litigants have a substantive due process right of access to state courts under the Fourteenth Amendment.2 For example, due process guarantees prohibit a state from denying welfare assistance recipients access to state courts to dissolve their marriage solely because they cannot afford to pay court fees and costs.3

In one case, the Court addressed whether the Fifth Amendment provides a similar right in federal bankruptcy proceedings.4 In United States v. Kras, the Court rejected an indigent bankruptcy petitioner’s constitutional challenge to a requirement that a petitioner pay fees required under the Bankruptcy Act and a federal court order in order to obtain discharge of his debts in a non-asset bankruptcy proceeding.5 The Court noted that discharge of one’s debts in bankruptcy was not a constitutional right and did not constitute the exclusive avenue for relief.6 It also determined that Congress had a rational basis for enacting the fee requirement.7

For more on the Fourteenth Amendment due process right, see Amdt14.S1.8.12.3 Access to Courts, Wealth, and Equal Protection. The Supreme Court has also recognized that the right of access to courts may implicate equal protection guarantees. See Amdt14.S1.8.12.3 Access to Courts, Wealth, and Equal Protection. back
Boddie v. Connecticut, 401 U.S. 371, 374 (1971). back
Id. back
United States v. Kras, 409 U.S. 434, 450 (1973). back
Id. back
Id. at 444–49. back
Id. back