concurring:
¶ 32 I concur with Justice Russon’s carefully and correctly reasoned majority opinion. I write not because I believe it necessary to add anything thereto, but rather to respond *1204to Justice Zimmerman’s lone concurrence in which he attacks long-standing Utah case law construing Article I, section 11 of the Utah Constitution, the so-called open courts provision.1 Justice Zimmerman aims much of his attack at Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985); however, the attack on Berry serves as a guise to nullify this Court’s Article I, section 11 jurisprudence and, more importantly, the Framers’ very purpose and intent in adopting the remedy clause in the Utah Declaration of Rights. He would reverse Utah case law that has existed for over fifty years and nullify the most important clause — the remedies clause' — in Article I, section 11. Justice Zimmerman’s current opinion is in stark contrast to his prior consistent positions in numerous opinions sustaining and applying Berry and giving effect to Article I, section 11 and its plain meaning. Simply stated, his current position would deny citizens of this state the constitutional right secured by the Framers to a remedy by due course of law for an injury to their persons, property, or reputations.
I. INTRODUCTION
¶ 33 In all, thirty-eight states have open courts provisions in their constitutions. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1201 & n. 25 (1992). A few of them guarantee only procedural access to the courts, but most, like Utah’s, also impose some substantive limitation on the power of the legislature to abolish judicial remedies in a capricious fashion. Indeed, one state, New Mexico, has recognized an implicit substantive constitutional right to a remedy in its state constitution, even though its constitution has no specific provision, such as Article I, section 11, to that effect. See id. (citing Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153, 1161 (1988)). After reviewing the law from other states, Professor Schuman has stated that most courts “interpret the remedy guarantee to proscribe some legislation affecting remedies without completely restraining lawmakers.” Id. at 1208. All courts, however, appear to recognize that “lawmakers cannot deprive plaintiffs of vested rights.” Id.
¶ 34 The primary origin of the rights protected by Article I, section 11 and the open courts provisions in most other state constitutions is the Magna Carta.2 Nevertheless, the adoption of open courts provisions by the various states has been influenced to some extent by conditions threatening those rights at the time the various constitutional provisions were adopted.
¶ 35 The provision in the Magna Carta that is the genesis of American open courts provisions was directed at King John’s corruption of the English courts. At the time of the American Revolution, when the first state constitutions were drafted, the evil aimed at was the closing of American colonial civil courts by the English for the purpose of denying civil remedies to the colonists. However,
[b]y the last quarter of the eighteenth century, during which the American remedy guarantees first appeared, the focus of popular distrust had shifted from the King’s courts to the people’s representatives. After an unsuccessful early period during which state constitutions contained expansive grants of authority to the legislative branch, the people, disillusioned by what they perceived as legislative corruption (capture by private interest), enacted a “second wave” of state constitutions *1205stripping legislatures of many of their prerogatives and vesting increased power in the judiciary.... [A]t the time that many modern American remedy guarantees themselves, or their direct predecessors, were brought into existence, the evil was renegade legislatures that had, for example, deprived injured creditors of their judicial remedies against debtors by passing legislation impairing existing contractual obligations.
Id. at 1200-01.
¶36 Open courts provisions have served two principal purposes. First, they were intended to help establish an independent foundation for the judiciary as an institution. See Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.Rev. 1279 (1995); Industrial Comm’n v. Evans, 52 Utah 394, 174 P. 825, 831 (1918) (“[T]he question of ultimate legal liability cannot be withdrawn from the courts.”). Second, open courts or remedies clauses were intended to grant individuals rights to a judicial remedy for the protection of their person, property, or reputation from abrogation and unreasonable limitation by economic interests that could control state legislatures. See Schuman, 65 Temp. L.Rev. at 1208; Berry, 717 P.2d at 675.
¶ 37 Justice Zimmerman’s opinion totally ignores the history and purposes of open courts provisions, and therefore, he does not even purport to construe Article I, section 11 in light of its purpose and history. Although he purports to analyze the language of section 11, he in fact abandons the plain meaning of the language of that provision in favor of a skewed interpretation that nullifies its most important purpose. The result would undermine a foundation stone of the judiciary and the right that a citizen has to a judicial remedy to protect one’s person, property, and reputation by broadening the power of special interests to misuse legislative power at the expense of the rights of the citizens.
¶ 38 In addition, Justice Zimmerman’s position flouts the doctrine of stare decisis. He would overrule fifty years of unanimous Utah legal precedent from Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612 (1948), to Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997), a case decided by a unanimous court barely one year ago. Some thirteen justices of this Court who have decided the long line of cases from Masich in 1948 to Hirpa in 1997, including Justice Zimmerman, have concurred in the plain meaning construction of Article I, section 11. This line of Utah cases is consistent with the rulings of the vast majority of courts from other states construing similar constitutional provisions.
¶ 39 Justice Zimmerman argues that the test adopted in Berry for determining how section 11 should be applied in cases challenging the constitutionality of a statute in effect “constitutionalizes” the common law and elevates it over statutory law. See ¶ 122. His assertion is simply incorrect; it is flatly contrary to the express language and holding of Berry and numerous other Utah cases decided under Article I, section 11. Although he claims that the Berry test is unduly restrictive of legislative power, the fact is that the test is no more restrictive of legislative power than the orthodox standard for applying the due process clause with respect to legislative power. No one today asserts that the due process clause of our constitution should be abandoned because it unduly restricts legislative power.
¶ 40 Although Ross v. Schackel, 920 P.2d 1159 (Utah 1996), which decided the issue of the immunity of a prison doctor for medical malpractice committed on a prisoner, was decided in part on the basis of whether a cause of action against such an official was recognized by the common law when the Utah Constitution was adopted, that analysis was not dictated by Berry; indeed, Ross simply did not employ the Berry analysis at all in resolving the immunity issue.3 While the common law is not wholly irrelevant to a proper construction of section 11,4 the Ross *1206opinion is aberrant in suggesting that the right to a remedy is defined by the common law as it existed in 1896.
II. ORIGINS AND PURPOSE OF ARTICLE I, SECTION 11 RIGHTS
¶ 41 The Framers of the Utah Constitution included Article I, section 11 to anchor in the Constitution rights that originated in the English Magna Carta of 1215 and that are among those essential to a peaceful society. The purpose of those rights is to bar sovereign power, whether kingly, parliamentary, or legislative, from undermining an independent judiciary and arbitrarily abolishing remedies that protect the person, property, or reputation of each individual.5 The rights Article I, section 11 protects are not ephemeral or time-bound rights; they are today as important to a just and peaceful society as they have been historically. Their origins go back further in history than any other provision in the Utah Declaration of Rights or, indeed, in the Bill of Rights of the United States Constitution, except for those rights protected by the due process clause.6 Those rights became the basis for important principles of English jurisprudence as developed by Lord Coke in the 17th century7 and Sir William Blackstone in the 18th century. Their work had a far-reaching effect in the framing of American state constitutions. See William C. Koch, Jr., Reopening Tennessee’s Open Court’s Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 Memphis St. L.Rev. 333, 357-64 (1997) [hereinafter Tennessee’s Open Court’s Clause ].
¶ 42 One of the abuses that gave rise to the Magna Carta was the King’s practice of conditioning the right to a royal writ, and thus the right to a remedy from the King’s Court, on the payment of a fee. The arbitrary granting and withholding of royal writs by the King made the judicial protection of goods, property, person, and reputation problematic and capricious.
¶ 43 In describing Lord Coke’s analysis of Chapter 29 of the 1225 Magna Carta,8 Koch stated:
*1207The discussion of Chapter 29 also provided Lord Coke -with the opportunity to explain the significance of the common law and the importance of individual rights. He viewed the common law as the “surest sanctuary, that a man can take, and the strongest fortresse to protect the weakest of all.” For Lord Coke, the common law was the right of everyone to have their goods, lands, families, body, life, and hon- or protected from injury and wrong. In his concluding observation of Chapter 29’s importance, Lord Coke stated: “As the goldfiner will not out of the dust, threds, or shreds of gold, let passe the least crum, in respect of the excellency of the metall: so ought not the learned reader to let passe any syllable of this law, in respect of the excellency of the matter.”
Id. at 360 (emphasis added) (footnotes omitted).
¶44 Blackstone asserted that the rights of Englishmen had little value but for Magna Carta’s guarantee of the right of access to the courts. With respect to that right and the right to a remedy for civil wrongs, Blackstone stated:
“A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England, the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The emphatical words of magna carta spoken in the person of the King, who in judgment of law (says sir Edward Coke) is ever present and repeating them in all his courts, are these: nulli vendemus, nulli negabimus, aut differemus restum vel jusütiam: ‘and therefore every subject,’ continues the same learned author, for injury done to him in bonis [i. e., goods] in terris [land] vel persona [person] by any other subject, be he ecclesiastical or temporal, without any exception, may take his remedy by the course of law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.’ ”
Tennessee’s Open Court’s Clause at 363 (emphasis added) (quoting 1 William Blackstone, Commentaries *141).
¶45 Commencing with the outbreak of the American Revolutionary War, the new states, which had been colonies of England, adopted constitutions. Beginning with the adoption of the Constitution of Virginia on June 29, 1776, eleven of the original thirteen states adopted new constitutions, and six of the eleven constitutions contained “open courts” or “right to remedy” provisions rooted in Chapter 40 of King John’s Magna Carta and Chapter 29 of the 1225 Magna Carta. See id. at 367. Section XII of the Delaware Declaration of Rights of 1776 was typical. It stated:
That every Freeman for every Injury done him in his Goods, Lands or Person, by any other Person, ought to have Remedy by the Course of the Law of the Land, and ought to have Justice and Right for the Injury done to him freely without Sale, fully without any Denial, and speedily without Delay, according to the Law of the Land.
Id. at 367.
¶ 46 The rights protected by those provisions included more than just a right to enter the courthouse. The substantive rights to be protected by the “remedy clauses” was implicitly recognized in several of the early state constitutions, as evidenced by the fact that the law of sovereign immunity was stated to be an exception to the rights protected by the remedy clauses in open courts provisions.9 For example, the open *1208courts provision in Article IX, section 11 of the Pennsylvania Constitution of 1790 included a sentence specifically providing the legislature with the power to determine when and how suits could be maintained against the commonwealth:
That all courts shall be open, and every man, for an injury done him in his lands, goods, person, or reputation shall have remedy by the due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the commonwealth in such manner, and in such courts, and in such cases as the legislature may by law direct.
Id. at 368 n. 220 (emphasis added).
¶ 47 An open courts, or guaranteed remedy, provision was not contained in the United States Constitution or in the federal Bill of Rights, no doubt because the law governing rights, duties, and liabilities between individuals with respect to the protection of “person, property, or reputation” was deemed to be committed or reserved exclusively to the states. See generally id. at 368-75. While there is, of course, some overlap in the rights guaranteed by open courts provisions and other constitutional provisions, such as due process and equal protection, that overlap is not unique to open courts provisions and does not lessen their importance as basic constitutional protections. There is, for example, some overlap between the equal protection, due process, and privilege and immunities clauses of both state and federal constitutions, but no one of those clauses is wholly duplicative of the other, and each fills a specific constitutional need.
¶48 Indeed, the United States Supreme Court recently observed with respect to the Texas open courts provision, which is similar to open courts provisions in Utah and a number of other states, that it provided broader constitutional protections than those afforded by the Due Process Clause of the Fourteenth Amendment. The Supreme Court in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12 n. 11, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), quoted LeCroy v. Hanlon, 713 S.W.2d 335, 340-41 (Tex.1986), which stated:
The open courts provision must have been intended to provide rights in addition to those in the due process provision or the former would be surplusage. Furthermore, the due process provision’s general guarantees contrast with the open courts provision’s specific guarantee of a right of access to the courts.
See also Tennessee’s Open Courts Clause at 341 n. 26.
¶ 49 It is true that some states have adopted open courts clauses that, unlike Utah’s, protect only the procedural rights of access to the courthouse and a speedy administration of judicial proceedings. But if the Framers of the Utah Constitution had intended to adopt such a limited guarantee, as Justice Zimmerman now says is all that section 11 does, the Framers had models that they could have copied. Cf., e.g., Mont. Const, art. II, § 16; Wash. Const, art. I, § 10 (“Justice in all cases shall be administered openly, and without unnecessary delay.”). Obviously, they did not intend to so limit the rights guaranteed to the citizens of Utah.
¶ 50 Because of political abuses that existed in a number of states at the end of the 19th century when the Utah Constitution was framed, the Framers, relying on legal principles that were centuries old, included constitutional protections against such evils. The abuses included the misuse of political influence by railroads and other corporate interests to elevate their self-interests over the public interest by obtaining from state legislatures privileges and immunities that insulated them from the general laws. For reference to the origin of open courts provisions and the industrial history of certain states around the turn of the century, see Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 811-12 (Ky.1991), and Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961, 971-73 n. 9 (1984).
¶ 51 The history of the framing of the Arizona Constitution reflected conditions that *1209existed around the turn of the century. As one commentator explained:
The history of the Arizona Constitutional Convention reveals the broad protection that the framers intended with the anti-abrogation provisions. The Arizona Constitution was drafted during the “high-water mark” of the progressive movement. The progressives did not trust big corporations. The powerful industries during that time were the railroad and mining corporations. These corporations were notorious for political domination and corruption.
The progressive movement allied itself with prolabor interests. Together, the progressive and labor interests set out to protect individuals from big business by regulating corporations and by curbing the substantive power of the legislature. This “tenacious” alliance influenced the Arizona Constitution. Ultimately, the convention approved a number of provisions that favored individuals over business, including the anti-abrogation provisions.
Johnny J. Sorensen, Comment, Adiós Statute of Repose: A Temporary Aberration in Constitutional Interpretation, 26 Ariz. St. L.J. 1101,1107-08 (1994) (footnotes omitted).
¶ 52 The law that had developed under Chapter 29 of the Magna Carta, according to Coke and Blaekstone, provided the means for dealing with such abuses. See generally Tennessee’s Open Court Clause at 358-63. Arizona, for example, adopted Article XVIII, section 6 as part of its constitution, the strongest of all such state constitutional provisions, not only to protect the right of citizens to a legal remedy for injuries inflicted, but also to protect specific “rights of actions” to recover damages. Article XVIII, section 6 of the Arizona Constitution states, “The right of action to recover damages for injury shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” For an explanation of related purposes underlying Article I, section 11 of the Utah Constitution, see Berry, 717 P.2d at 674-81, and Justice Zimmerman’s lengthy and accurate explanation in Condemarin v. University Hospital, 775 P.2d 348, 366, 367 (Utah 1989) (Zimmerman, J., concurring).
¶ 53 Article I, section 11 of the Utah Constitution is much more flexible and much less restrictive of legislative power than the Arizona provision. Section 11 protects a citizen’s right to a remedy rather than causes of action as such, but the abuses that gave rise to the Arizona provision no doubt influenced the Utah Framers. It is significant that the labor article in the Utah Constitution, Article XVI, section 5, gave constitutional protection, as does Arizona’s constitution, to wrongful death “causes of action” and provides that the amount that can be recovered in damages cannot be limited by statute. Article XVI, section 5 of the Utah Constitution (as later amended to accommodate the Workers’ Compensation Act) states:
The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.
Although the remedies clause in Article I, section 11 does not protect particular causes of action, it does safeguard remedies necessary to protect the interests of person, property, and reputation from arbitrary abrogation, as Evans, 52 Utah 394, 174 P. 825 (1918), Masich, Berry, Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989), and Sun Valley Water Beds v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), show.
¶ 54 Justice Zimmerman asserts that history supports the view that the Framers of the Utah Constitution did not intend the constitutionalization of the common law by the language adopted in Article I, section ll.10 That of course is correct, but his history is not. Justice Zimmerman’s statement *1210that Utah “abjur[ed] the common law entirely,” ¶ 144, is far from an accurate assessment of Utah history.11 To deny, as Justice Zimmerman does, that the common law was a fundamental part of the law that governed the Utah Territory is revisionist history wholly detached from the most cursory reading of the history of the Territory. See, e.g., Thomas v. Union Pac. R.R., 1 Utah 232, 234 (1875); First Nat’l Bank v. Kinner, 1 Utah 100, 107 (1873); People v. Green, 1 Utah 11, 13-14. The warp and the woof of the law in the Territory was the common law. The volumes of the Supreme Court Reports for the Territory of Utah are replete with the application of common law principles in all kinds of property, personal injury, and contract cases, as well as on procedural issues. Indeed, various provisions of the Utah Declaration of Rights cannot be understood without reference to the common law and the history of Anglo-American law. For example, the provisions in the Declaration of Rights with respect to the right of free speech, the privilege against self-incrimination, the right to jury trial, etc., are all rooted in, and grew out of, the common law heritage that defines the scope and meaning of many provisions in both the Utah and the United States Constitutions. Indeed, this Court has often resorted to the common law in construing various provisions in the Utah Declaration of Rights. See, e.g., Jensen v. State Tax Comm’n, 835 P.2d 965 (Utah 1992); American Fork City v. Crosgrove, 701 P.2d 1069 (Utah 1985).
III. THE PLAIN MEANING OF ARTICLE I, SECTION 11
¶ 55 The preeminent obligation of judges in constitutional adjudication is to give force to constitutional provisions intended to protect the rights of the people against intrusions by majorities and overreaching special interests who misuse legislative powers to advance their private self-interests at the expense of the liberties of the people. The meaning of the constitutional provisions that judges are under oath to apply is found first and foremost in the plain meaning of the constitutional language.
A. The Plain Language of the Remedy Clause of Section 11
¶. 56 Plainly put, Justice Zimmerman would rewrite the plain language of section 11. He asserts that “a thorough parsing of article I, section 11 demonstrates to me that Berry incorrectly concluded that the open courts provision provides very specific substantive limitations on the legislature.”12 ¶ 120. The answer to his assertion that section 11 establishes only a procedural right of *1211access to the courts is the plain language of Article I, section 11 itself. Section 11 states:
[1] All courts shall be open, [2] and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, [3] which shall be administered without denial or unnecessary delay; and [4] no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.
¶ 57 For ease of reference, bracketed numbers have been inserted at the beginning of each separate clause in section 11. Section 11 contains four clauses. Clauses 1, 3, and 4 deal with procedural rights prescribing how courts and judicial proceedings should be administered. Clause 2, the remedy clause, establishes the right of a person injured “in his person, property or reputation” to a judicial remedy to redress those injuries.
¶ 58 Clause 1 states that “all courts shall be open.” Clause 2 states that “every person, for an injury done to him in his person, property or reputation shall have remedy by due course of law.” Clause 3 states that all judicial proceedings “shall be administered without denial or unnecessary delay.” Clause 4 establishes the right of self-representation in civil cases. Each of these clauses in section 11 has been held to bind the Legislature. See Jensen v. State Tax Comm’n, 835 P.2d 965 (Utah 1992); Berry, 717 P.2d 670; Celebrity Club, Inc. v. Liquor Control Comm’n, 657 P.2d 1293 (1982); Nelson v. Smith, 107 Utah 382, 154 P.2d 634 (1944); Evans, 52 Utah 394, 174 P. 825.
¶ 59 Section 11 mandates not only that the courthouse door be open to all litigants, but also that, once inside the courthouse, litigants are entitled to a remedy “by due course of law” for legal injuries. Thus, to make the right of access to the courthouse more than an empty gesture, clause 2 mandates that “every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law.” Clause 2 could not be more clear. The language that “every person ” “shall have remedy ” that shall be “by due course of law ” is as specific, clear, and mandatory as the English language can be. Clause 2, unlike the other three clauses, does not deal with procedural requirements pertaining to judicial proceedings. Rather, clause 2 imposes the “substantive” requirement that one who is harmed in person, property or reputation shall have the right to a “remedy by due course of law.”
¶ 60 In flat contradiction to the clear meaning of the above language, Justice Zimmerman argues that the remedy clause does not provide that a person injured in person, property, or reputation shall have a remedy, but that this language means only that remedies should be administered expeditiously. See ¶ 148. Thus, according to him, the Legislature has wholly unrestrained power to abrogate any and all remedies that would redress injuries to one’s person, property, and reputation. He correctly states that the remedy clause does not merely state that a person “shall have remedy” and that the remedy shall be “by due course of law,” but then illogically jumps to the non sequitur that “the remedy guarantee” is thus cast “in a procedural light.” ¶ 148. That conclusion is ungrammatical; it makes no sense to say that the substantive right to a remedy is procedural only because it is to be administered without “unnecessary delay.” Thus, Justice Zimmerman’s purported “parsing” of the language in section 11 is both ungrammatical and flatly contrary to its plain meaning. As stated, the phrase that a remedy shall be by “due course of law” does not change the declarative language that a person shall have a remedy for an injury to person, property, or reputation. The “due course of law” requirement simply means that a remedy shall be administered by established legal procedures. Justice Zimmerman also argues that the clause “which shall be administered without denial or unnecessary delay” reinforces a procedural emphasis. ¶ 148. But that adverbial clause does not change in the least the meaning of the preceding phrase that “every person for an inju*1212ry done to him shall have remedy by due course of law.” The latter clause is an independent, declarative clause that creates a right to a remedy, and the language that the remedy “shall be administered without denial or unnecessary delay” merely describes how the right to a remedy should be administered.
¶ 61 Justice Zimmerman’s “parsing” of the language is nothing more than a play on words that seeks to obscure the plain meaning of the remedy clause so as to nullify its meaning and effectively erase that clause from the Constitution. As he rewrites section 11, it would read:
All courts shall be open [and all proceedings] shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal....
¶62 When judicial restraint evaporates to such an extraordinary degree that a provision of the Constitution can be nullified by a judicial rewriting of it, no provision in the Constitution is safe from the personal predilections of judges, and the whole foundation of constitutional restraint of governmental power is imperiled. There is no legally legitimate justification for substituting a judge’s personal view of what the law should be for what the people of Utah, through their Constitution, have stated the law shall be.
¶ 63 Justice Zimmerman’s rewriting of clause 2 also violates Article I, section 26 of the Declaration of Rights, which states, “The provisions of this Constitution are mandatory and prohibitory unless by express words they are declared to be otherwise.” There is nothing in any of the language of section 11 that declares it to be other than mandatory and prohibitory. Section 26 “rivets section 11, and all the other rights in the Declaration of Rights, into the fundamental law of the state and makes them enforceable in a court of law.” Berry, 717 P.2d at 676.
B. Utah Case Law
¶ 64 In an apparent attempt to show that Berry constituted a break with prior law, Justice Zimmerman states that Berry was the first Utah case to recognize that section 11 limits the power of the Legislature to abrogate remedies. See ¶ 112. That is totally incorrect. In 1948, this Court decided Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612 (1948), which clearly recognized that section 11 places some reasonable limitation on the power of the Legislature to abolish remedies. I discuss Masich at length infra but now simply note that, in harmony with Masich, Berry restated the plain meaning of section 11:
Section 11 protects remedies by due course of law for injuries done to the substantive interests of person, property, and reputation. What section 11 is primarily concerned with is not particular, identifiable causes of action as such, but with the availability of legal remedies for vindicating the great interest that individuals in a civilized society have in the integrity of their persons, property, and reputations.
717 P.2d at 677 n. 4 (emphasis added).
¶ 66 Berry ⅛ statement that the remedy clause preserves a right to a remedy by “due course of law” is consistent with the interpretation of section 11 that all Utah cases involving the issue have employed. See Hirpa v. IHC Hosp. Inc., 948 P.2d 786 (Utah 1997); Ross v. Schackel, 920 P.2d 1159 (Utah 1996); Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989); Sun Valley Water Beds v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989); Cruz v. Wright, 765 P.2d 869 (Utah 1988); Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985); Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Masich v. United States Smelting, Ref. & Mining Co., 113 Utah 101, 191 P.2d 612 (1948); Industrial Comm’n v. Evans, 52 Utah 394, 174 P. 825 (1918); see also Currier v. Holden, 862 P.2d 1357 (Utah Ct.App.1993); cf. Brown v. Wightman, 47 Utah 31, 151 P. 366 (1915).
¶ 66 Utah ease law on this fundamental point of the effect of the remedy clause is in accord with the law recognized by a majority of courts in other states having similar con*1213stitutional provisions, although in any particular case, the courts might differ in applying the general rule. In The Right to a Remedy, Professor Schuman stated:
Thus, no court has adopted a rule of absolute deference to legislatures; even the most radical courts recognize that lawmakers cannot deprive plaintiffs of vested rights. Further, no court has taken an absolute approach at the other end of the spectrum, holding that the remedy guarantee prohibits any and all legislative elimination or modification of remedies. That approach would work radical changes on well settled doctrines such as statutes of limitations, workers’ compensation, and sovereign immunity. Most courts find some middle ground: they interpret the remedy guarantee to proscribe some legislation affecting remedies without completely constraining lawmakers.
65 Temp. L.Rev. at 1208 (emphasis added). For cases that either expressly or implicitly recognize the restrictive effect of the remedy clause on arbitrary legislative action, see, for example, Kruszewski v. Liberty Mutual Insurance Co., 653 So.2d 935, 937-38 (Ala.1995), Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1000-04 (Ala.1982), Hayes v. Continental Insurance Co., 178 Ariz. 264, 872 P.2d 668, 676 (1994), Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d 625, 627 (1993) (en banc), White v, City of Newport, 326 Ark. 667, 933 S.W.2d 800, 803 (1996), Moore v. Ganim, 233 Conn. 557, 660 A.2d 742, 751 & n. 31 (1995), Young v. O.A. Newton & Son Co., 477 A.2d 1071, 1078 (Del.Super.1984), Gallegher v. Davis, 183 A. 620, 624-25 (Del.Super.1936), Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So.2d 1239, 1253 (Fla.1996), Martinez v. Scanlan, 582 So.2d 1167, 1171 (Fla.1991), Kluger v. White, 281 So.2d 1, 4 (Fla.1973), Lemuz v. Fieser, 261 Kan. 936, 933 P.2d 134, 141-44 (1997), Saylor v. Hall, 497 S.W.2d 218 (Ky.1973), Waldon v. Housing Authority, 854 S.W.2d 777, 778 (Ky.Ct.App.1991), Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 671 A.2d 548, 550 (1996), Brennaman v. RMI Co., 70 Ohio St.3d 460, 639 N.E.2d 425 (1994), Burgess v. Eli Lilly & Co., 66 Ohio St.3d 59, 609 N.E.2d 140, 142 (1993), Hardy v. Ver-Meulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995), Kennedy v. Cumberland Engineering Co., 471 A.2d 195 (R.I.1984), Daugaard v. Baltic Cooperative Building Supply Ass’n, 349 N.W.2d 419, 424 (S.D.1984), Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996), Sax v. Votteler, 648 S.W.2d 661, 664-65 (Tex.1983), and Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634, 645 (1991).13
¶ 67 The Framers of the Utah Constitution, in adopting Article I, section 11, intended to establish a fundamental principle to a just civil society. Unless the law provides remedies “by due course of law” for vindication of wrongs inflicted on persons, their property, or their reputations, a civil society cannot exist, as Lord Coke and Sir William Blackstone long ago observed. The Framers clearly recognized that a peaceful and just society must provide civil remedies for the protection of fundamental personal interests so that people can protect the integrity of their persons from injuries inflicted by others, their property rights from interference and misappropriation by others, and their good character from libel and slander. In addition, section 11 serves the important goal of buttressing the independence of the judiciary against improper interference by other branches of government. In sum, section 11, at bottom, seeks to secure a basic principle of justice that will, in the end, deter persons *1214wronged by others from resorting to self-help and the inevitable violence that ensues when people take the law into their own hands rather than seeking judicial remedies.
IV. BERRY DOES NOT IMPROPERLY INTERFERE WITH THE LEGISLATIVE PREROGATIVES AND DOES NOT CONSTITUTIONALIZE THE COMMON LAW, AND SECTION 11 RIGHTS ARE NOT DETERMINED BY THE COMMON LAW AS IT EXISTED IN 1896
¶68 Justice Zimmerman contends that Berry constitutionalized the common law as it existed in 1896. See ¶¶ 122-34. That contention is unequivocally wrong. Berry did not do that; in fact, it made clear that the Legislature was not bound by the common law.14
¶ 69 I turn first to the law that was actually established in Berry. Justice Zimmerman asserts that Berry had the effect of constitutionalizing the common law and that it improperly restricted legislative prerogatives. Justice Zimmerman’s words for a unanimous Court in Cruz v. Wright, 765 P.2d 869 (Utah 1988), were true when written, are true now, and refute his newly contrived position that Berry constitutionalized the common law and improperly interferes with legislative power. In Cruz, Justice Zimmerman quite correctly described Berry’s construction of Article I, section 11 and its relationship to the common law:
Nowhere in this state’s jurisprudence is it suggested that article I, section 11 flatly prohibits the legislature from, altering or even abolishing certain rights which existed at common law. See Berry ex rel. Berry v. Beech Aircraft, 717 P.2d 670, 676, 680 (Utah 1985). In fact, in Berry, we specifically stated that the legislature may eliminate or abrogate a cause of action entirely if there is sufficient reason and the elimination or abrogation “is not an arbitrary or unreasonable means [off achieving the objective.” 717 P.2d at 680.
765 P.2d at 871 (emphasis added) (some citations ■ omitted). Consistent with this language, Cruz held that the Married Woman’s Act, which abolished a married man’s common law right of action for loss of his wife’s consortium, did not violate Article I, section 11. See id. at 869, 871. Justice Zimmerman’s statement in Cruz about Berry ⅛ effect on legislative power and the common law is irreconcilable with what he now says.
¶ 70 Nothing in Berry or its doctrine supports Justice Zimmerman’s newfound contention. The Berry opinion is as explicit as language can be that the proper construction and application of Article I, section 11 does not constitutionalize the common law. See Berry, 717 P.2d at 676; Guymon, 1997 Utah L.Rev. at 898-99.
¶ 71 The issue in Berry was the constitutionality of a products liability statute of repose that abrogated all legal remedies for personal and property injuries caused by defective products after an arbitrarily fixed period of time, irrespective of the nature of the particular product or its potential dangerousness.*121515 The justification for the statute was that it was necessary to solve the problem of rapidly escalating products liability insurance premiums. As shown below, that “justification” was a mere pretense with no factual basis.
¶ 72 Berry was an action for damages arising from a husband’s and father’s death caused by an airplane crash. The complaint alleged actions based on common law negligence, strict liability, and breach of warranty. In holding unconstitutional the statute’s abrogation of all legal remedies before the injury occurred, the Court relied on the plain meaning of the remedy clause in section 11. The legal right to recover for an “injury” to one’s “person” was clearly established by the extant substantive tort and products liability law. After carefully assessing the Legislature’s “factual” findings that supposedly justified its abrogation of remedies, the Court held that the statute of repose was an arbitrary and wholly unjustified abrogation of every possible legal remedy plaintiffs had for their injuries.
¶ 73 Nevertheless, Berry made clear that no person has a “vested right" in a rule of law, as such, under either the open courts or the due process provision of the Utah Constitution. 717 P.2d at 675. As a corollary to that principle, Berry declared, contrary to Justice Zimmerman’s repeated assertions:
[NJeither the due process nor the open courts provision constitutionalizes the common law or otherwise freezes the law governing private rights and remedies of the time of statehood. It is, in fact, one of the important functions of the Legislature to change and modify the law that governs relations between individuals as society evolves and conditions require.
Id. at 676 (emphasis added) (citation and footnote omitted).
¶ 74 Having established that fundamental principle, Berry explicitly recognized — contrary to Justice Zimmerman’s repetitious assertions otherwise — the broad power the Legislature necessarily has in “defining, changing, and modernizing the law,” albeit without eradicating the rights of citizens to a remedy under the law for civil wrongs:
Necessarily, the Legislature has great latitude in defining, changing and modernizing the law, and in doing so may create new rules of law and abrogate old ones. Nevertheless, the basic purpose of Article I, section 11 is to impose some limitation on that power for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid.
Id. (emphasis added). Berry also recognized that section 11 rights are not always paramount and that they do
not sweep all other constitutional rights and prerogatives before them. They, too, like many constitutional rights, must be weighed against and harmonized with other constitutional provisions. The accommodation of competing, and sometimes clashing, constitutional rights and prerogatives is a task of the greatest delicacy, although common and necessary in constitutional adjudication.
Id. at 677.
¶ 75 Berry held that the Legislature is not free to abrogate legal remedies for inju*1216ries to one’s person, property, or reputation for arbitrary or capricious reasons. To achieve that purpose, Berry established a two-part test to determine the constitutionality of a statute which abrogates remedies that vindicate the interests protected by section 11:
First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy “by due course of law” for vindication of his constitutional interests. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one’s person, property, or reputation, although the form of the substitute remedy may be different....
Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.
Id. at 680.16
¶ 76 Justice Zimmerman’s contention that the Berry test is flawed because it is unduly restrictive of legislative power is absurd. The irrefutable fact is that, applying that test, this Court has held only two statutory provisions unconstitutional: the products liability statute of repose in Berry and the architect and builders statute of repose.17 Today this Court properly holds a revised (and far less arbitrary) architect and builders statute of repose constitutional. Given today’s ruling, the net effect of the Berry test has been to strike one statute, the products liability statute of repose. That hardly supports Justice Zimmerman’s repeated assertions that the Berry test has unduly intruded on legislative power.
¶ 77 Furthermore, the Berry test is essentially the same test that the United States Supreme Court has used in determining whether “life, liberty, or property” has been denied under a substantive interpretation of the Fourteenth Amendment Due Process Clause. That test is not, as Justice Zimmerman would have it, a highly stringent restriction on legislative power. The Berry test is also similar to the due process and equal protection of the laws tests that this Court has historically applied. Using the Berry test, this Court has recently sustained the Legislature’s power to enact statutes that change or abrogate the right to a remedy in a number of cases. See, e.g., Hirpa, 948 P.2d at 794; Cruz, 765 P.2d at 869; see also Ross, 920 P.2d at 1166; Masich, 191 P.2d at 624. Indeed, both this Court and the Legislature have abolished obsolete common law actions, irrespective of their status in 1896, notwithstanding section 11. See, e.g., Norton v. Macfarlane, 818 P.2d 8, 17 (Utah 1991) (tort of criminal conversation abolished); Stoker, 616 P.2d at 591 (intra-family tort immunity partially abolished); Sessions v. Thomas D. Dee Memorial Hosp. Ass’n, 94 Utah 460, 78 P.2d 645 (1938) (tort immunity for charities abolished).
¶ 78 The products liability statute of repose at issue in Berry totally abrogated all legal remedies for persons injured after the statutory repose period elapsed. Because the Legislature provided no alternative remedy, the Court’s analysis moved to the second part of the Beimy test to determine (a) *1217whether there was a clear social or economic evil to be eliminated and (b) whether the abrogation of legal remedies was an arbitrary or unreasonable means for achieving that objective.
¶ 79 The Legislature asserted justification for the elimination of an injured person’s legal remedies by the need to solve what it said was an “insurance premium crisis.” Berry, 717 P.2d at 681. This Court held that the abrogation of a person’s legal remedies was unconstitutional because the statute of repose was arbitrary and unreasonable in the sense that the statute could not possibly contribute to the solving of the presumed “insurance premium crisis.” Id. at 681-82. The statute’s abrogation of legal remedies for injuries produced by defective products would not reduce products liability insurance premiums in Utah for the simple reason that insurance premiums for Utah manufacturing companies were based on “nationwide data, not on a manufacturer’s experience in Utah.” Id. Thus, even a total abrogation of all products liability claims whenever they arose— even if before the running of the statute of repose — would have had no effect on insurance rates in Utah. In truth and fact, the assertion of an insurance crisis in Utah was a pure sham. The legislative finding that the number of claims for damages arising from defective products had increased greatly in recent years was simply factually not true in Utah. A survey of 500 members of the Utah Manufacturers’ Association disclosed that only one manufacturer had reported a products liability claim made against it. See id. at 681.
¶ 80 Furthermore, even if, contrary to the fact, there were an “insurance crisis” in Utah, the statute of repose was an arbitrary means for accomplishing the legislative purpose. “The statute does not even purport to approximate an average expected life of the products covered, nor is it based on products that presented particular safety difficulties. It applies alike to toasters, automobiles, road graders, and prescription drugs.” Id. The statutory six- and ten-year periods after which all remedies were barred were arbitrary and unreasonable because the statute presumed that the useful life of all products was the same, from lipstick to dynamite, to aircraft, and to automobiles. Given the falsity of the stated factual basis for the Legislature’s actions and the arbitrariness of the means used, the Court held that the statute of repose was “arbitrary [and] unreasonable, and [would] not achieve the statutory objective.” Id.
¶ 81 Justice Zimmerman’s contention that the Berry test is “unworkablef,] ... subject to manipulation, ... leads to absurd results, and ... distorts our relationship with the legislature,” ¶ 108, is simply factually wrong. The Berry two-part test allows the Legislature considerable latitude to modify and even eliminate judicial remedies where appropriate. Under the first part of the test, the so-called quid pro quo part, the Legislature may establish statutory remedies in the place of common law remedies, as the Legislature has done in enacting the Workers’ Compensation Act and the Occupational Disease Act. See also Utah No-Fault Automobile Insurance Act, Utah Code Ann. §§ 31A-22-301 to -310 (1998); Berry, 717 P.2d at 677; Masich, 191 P.2d at 612. Each Act totally abrogates common law remedies and substitutes therefor statutory remedies administered by an administrative agency in the case of the first two Acts and, in the case of the No-Fault Act, an insurance contract remedy.
¶ 82 Justice Zimmerman’s assertion that the Berry test is unworkable and leads to absurd results is also wholly detached from an objective appraisal of Utah case law. Responding point by point is unnecessary. A reading of our cases demonstrates the error of the assertion. Suffice to say, the Berry test is the same test that the United States Supreme Court has applied under the Due Process Clause of the Fourteenth Amendment in deciding whether one has been denied life, liberty, or property. See, e.g., Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 680-82, 50 S.Ct. 451, 74 L.Ed. 1107 (1930); Crane v. Hahlo, 258 U.S. 142, 42 S.Ct. 214, 66 L.Ed. 514 (1922); see also *1218PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 94, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (Marshall, J., concurring) (stating that reasonable alternative remedy must be provided when core common law rights are abolished); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Condemarin, 775 P.2d at 366-69 (Zimmerman, J., concurring) (explaining due process approach); Mineer v. Industrial Comm’n, 572 P.2d 1364, 1366 (Utah 1977); State v. Mason, 94 Utah 501, 78 P.2d 920, 925-26 (1938).
¶83 Justice Zimmerman’s further assertion that Berry is “inconsistent with our pre-Berry case law,” ¶ 144, is unequivocally incorrect. Forty years before Berry was decided, this Court held in Masich that the remedy clause in section 11 was a substantive limitation on the Legislature’s power to abolish remedies. Nevertheless, the Court held that the statute at issue, the Occupational Disease Act, which barred all common law tort actions for partial disability caused by an occupational disease, did not violate the limitation that Article I, section 11 imposed on legislative power. See 191 P.2d at 624-25.
¶84 The issue in Masich was whether the exclusive remedy provision of the Act could constitutionally abrogate common law negligence actions against an employer by a worker who was partially disabled by silicosis. The Act provided compensation for total disability only. The worker argued that the Act was unconstitutional under Article I, section 11 because the exclusive remedy provision abrogated his common law remedy for damages against the employer and because he was accorded no substitute statutory remedy under the Act. The Court stated:
The contention is made that if a partially disabled employee is not granted compensation and, further, is denied his common law right of action then he has been deprived of his remedy by due course of law for an injury done to him in his person, contrary to the provisions of the Constitution of this state.
Id. at 623. The Court then quoted Article I, section 11 and acknowledged that if the Legislature were to abolish all right to compensation and all common law rights for negligence by an employee, “no contention could reasonably be made that it was a proper exercise of the police power. The reverse would be true and pauperism with its concomitants of vice and crime would flourish.” Id. at 624.
¶ 85 Although the Act provided no alternative statutory remedy for partial disability,18 the Court stated that overall the Act provided broader remedies in some respects to employees than existed at common law. The Act abolished the common law fellow-servant rule and the defenses of assumption of risk and contributory negligence, and imposed, in lieu of common law damage actions, statutory actions for compensation (not damages) based on strict liability. The Court stated, “The humanitarian principles of the occupational disease act do overcome in part, the inadequacy of relief at common law for a class of employees, and the act should not be discarded because some members of the class *1219have rights, which may be adversely affected.” Id. at 624.
¶ 86 Significantly, all members of the Court that decided Masich — Justices- Latimer, McDonough, Wolfe, Pratt, and Wade (who dissented on the narrow ground that as a matter of statutory construction the Act did not bar a common law claim for partial disability) were of the view that Article I, section 11 imposed a substantive guarantee of a remedy by due course of law that the Legislature could not ignore without having a substantial, nonarbitrary basis for doing so. That, indeed, has been the unanimous view of each and every justice of this Court who has ever ruled on the construction of Article I, section 11 — some thirteen justices in all, including Justice Zimmerman — until his lone opinion in this case.
¶ 87 Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997), decided barely a year ago with the concurrence of Justice Zimmerman and all other members of the Court, refutes Justice Zimmerman’s assertion that the Berry test is unduly rigid and unworkable. Hirp a relied on Berry in sustaining the constitutionality of the Utah Good Samaritan Act against a challenge under Article I, section 11 of the Constitution. That Act barred all negligence actions against a doctor who volunteered his services in an emergency situation. In applying the Berry test, the Court first found that the plaintiff had no alternative remedy to that of an action against a doctor who allegedly committed malpractice as a volunteer in an emergency situation. Id. at 792. Nevertheless, the statute was held constitutional under the second part of the Berry test. The Court found that the legislative purpose of the statute was to eliminate the “evil” of deterring doctors from giving medical assistance in emergencies because of the common law rule that legal liability could be imposed on a doctor who volunteered medical care in an emergency, The Court stated:
Receiving physician-rendered medical care can significantly increase the likelihood of surviving a life-threatening situation. Therefore, it must be considered a social evil that the common law actually contained disincentives to licensed medical providers who were potentially able to respond to an emergency and render medical care. The legislature remedied this situation by immunizing licensed medical providers who sought in good faith to aid others by rendering emergency medical care.
Id. at 793-94.
¶ 88 It is true that the Court also undertook an analysis of whether the common law at the time of statehood would have provided immunity for a volunteer’s negligence and concluded that there would have been immunity. See id. at 793. But that inquiry, apparently prompted by the opinion in Ross v. Schackel, was wholly unnecessary; it was certainly not required by our opinion in Berry.19 Hirpa’s holding that the statute was constitutional under the Berry test was by itself dispositive.
¶ 89 In sum, this Court has made clear in numerous cases that the Legislature has the power to create, modify, and abolish causes of action. Berry quoted Masich that “ ‘no one has a vested interest in any rule of law,’ ” 717 P.2d at 675, and that “ ‘[njeeessarily, the Legislature has great latitude in defining, changing, and modernizing the law, and in doing so may create new rules of law and abrogate old ones.’ ” Id. at 676. These same principles have been restated and reemphasized in numerous other cases. See, e.g., Horton, 785 P.2d at 1087; Sun Valley, 782 P.2d at 188.20
¶ 90 In sum, Hirpa, Cruz, Berry, Norton, and Masich clearly demonstrate that our sec*1220tion 11 cases do not “freeze the common law,” elevate it over the statutory law, or unduly restrict legislative power. Indeed, Justice Zimmerman’s present position rings hollow in light of his prior ardent advocacy of the principles laid down in Berry,21 including its construction of Article I, section 11.
¶ 91 Justice Zimmerman’s repetitious assertions that Berry constitutionalized the common law as of 1896 are simply incorrect. There is nothing in the Berry opinion that supports that contention. In fact, Berry explicitly states the exact opposite: “[NJeither the due process nor the open courts provision constitutionalizes the common law or otherwise freezes the law governing private rights remedies as of the time of statehood.” Berry, 717 P.2d at 676; see also DeBry v. Noble, 889 P.2d 428, 435-36 (Utah 1995). Indeed, this Court has abolished outmoded common law causes of action and immunities that existed in 1896 and has sustained legislative enactments doing the same. Norton, 818 P.2d at 8, abolished the tort of criminal conversation; Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), construed a statute that abolished the common law right of a husband to recover for personal injuries to his wife and that gave the right of recovery to the wife; Stoker, 616 P.2d at 590, abolished intra-family tort immunity with respect to intentional batteries committed by one spouse on another. As noted above, the No-Fault Insurance Act barred tort recovery of certain kinds of damages for automobile accident victims in lieu of an insurance remedy. The most far-reaching legislative abolition of common law tort remedies is in the Workers’ Compensation Act and the Occupational Disease Act, which bar common law negligence actions against fellow workers and employers and created new statutory remedies that provide limited insurance benefits based on strict liability of the employer. Masich specifically sustained the constitutionality of the Occupational Disease Act and, by implication, the constitutionality of the Workers’ Compensation Act, against an attack under Article I, section 11. The Court did not give the slightest suggestion that the common law remedies that were abrogated had any constitutional status, as Justice Zimmerman would have it.
¶ 92 In short, Justice Zimmerman’s contention that our cases have constitutionalized the common law as it existed in 1896 (or at any other time) misstates the cases that have been decided under Article I, section 11 and *1221the principles that govern the application of that provision. His conclusion that Berry ⅛ analytical model is “unworkable, leads to strained analyses and quixotic results, and distorts the relationship between the legislature and the courts,” ¶ 122, is based squarely on the erroneous proposition that Berry con-stitutionalized the common law.
V. SOVEREIGN IMMUNITY AND ARTICLE I, SECTION 11
¶ 93 Of course, common law tort immunities, such as sovereign and official immunity, may clash with the right to a remedy for injuries to one’s person and property under Article I, section 11 and have presented an important and somewhat difficult subset of issues. Justice Zimmerman states, “[T]he cold fact is that whether a cause of action existed in 1896 has become the determinative factor for whether article I, section 11 is transgressed by the enactment of governmental immunity.” ¶ 123. That statement is in flat contradiction to the law established in DeBry v. Noble. As a consequence, his “analysis” of Utah sovereign immunity cases misstates Utah law.22
¶ 94 By way of background, the law of sovereign immunity originated as a judge-made law in the United States and was adopted in this state in case law. It remained a common law doctrine until the Legislature enacted the Utah Governmental Immunity Act in 1965, which codified the general common law doctrine but modified and liberalized its specific application in certain ways. See 1965 Utah Laws 390, ch. 139; DeBry, 889 P.2d at 432-40. See generally Guymon, 1997 Utah L.Rev. at 880-81. As a general rule, the law of governmental immunity bars remedies against government agencies for personal and property injuries, but there have long been numerous exceptions to the general rule. This Court has made clear that governmental immunity, as such, is not overridden by Article I, section 11. Governmental immunity was a clearly recognized part of the law when the Utah Constitution was framed, and the Framers of the Constitution must have deemed governmental immunity to be an exception to the right to a remedy protected by Article I, section 11.23 See DeBry, 889 P.2d at 435, 436; see also Madsen v. Borthick, 658 P.2d 627 (Utah 1983).
¶ 95 In discussing the relationship of governmental immunity and Article I, section 11 rights, Justice Zimmerman states that “despite Berry’s disclaimer that article I, section 11 does not constitutionalize the common law as it existed at statehood, the cold fact is that whether a cause of action existed in 1896 has become the determinative factor for whether article I, section 11 is transgressed by the enactment of governmental immunity.” 24 ¶ 123. That is not correct.
¶ 96 Both DeBry and Madsen squarely held that the doctrine of sovereign immunity *1222did not, as a general proposition, violate Article I, section 11. DeBry, 889 P.2d at 432-42; Madsen, 658 P.2d at 629. In addition, DeBry established the standard for determining what government activity is immune and falls outside Article I, section 11 protections. Clearly, not all government action was subject to governmental immunity, and the government action that was not immune would give rise to tort liability and recovery of damages. See DeBry, 889 P.2d at 436-40.
¶ 97 The government activity at issue in Madsen was the supervision and regulation of financial institutions. The plaintiff claimed damages from the state for negligence in performing those functions. The Court held that the supervision and regulation of financial institutions was a “core governmental function” that was clearly within the scope of the governmental immunity doctrine. Therefore, there was no cause of action for damages based on negligence. And that was so irrespective of whether negligent government regulation of financial institutions would have been protected by governmental immunity from actions for damages in 1896. See Madsen, 658 P.2d at 631;25 see also Gillman v. Department of Fin. Inst., 782 P.2d 506 (Utah 1989). In short, the analysis had nothing to do with whether there was a cause of action for negligent government supervision of financial institutions in 1896. The analysis was based on an assessment of the effect that tort liability would have on government operations.
¶ 98 Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989), was the first case to address the interface between Article I, section 11 rights and sovereign immunity. That case was decided by a majority made up of Justices Durham, Zimmerman, and Stewart. Justice Durham wrote the lead opinion in which Justice Zimmerman concurred to a large extent. Justices Zimmerman and Stewart also wrote separate concurring opinions. All three justices agreed that sovereign immunity for tort liability was limited, to some extent, by the rights protected by Article I, section 11. Justices Durham and Zimmerman, relying on due process and Article I, section 11, held that the statutory cap limiting damages to $100,000 per person was unconstitutional in an action against a state-operated hospital. Justice Stewart also held the cap unconstitutional, but relied on the uniform operation of the laws provision, Article I, section 24. In holding that the operation of a state-owned hospital was not subject to immunity, the majority justices did not look to the common law as it existed in 1896.
¶ 99 The relationship between governmental immunity and Article I, section 11 rights was addressed again by the Court in a more definitive manner after an extensive review of Utah case law from territorial days to the present in DeBry, which sustained governmental immunity with respect to enforcement of building code regulations. De-Bry added to the Condemarin analysis by focusing on the historical concept of “core *1223governmental functions,” as the key determinant of governmental tort immunity. In De-Bry, the plaintiffs asserted a right to sue Salt Lake County for negligence on the ground that the county and its agents, in supervising the building code regulations and in issuing and denying building permits, had negligently caused damage to the plaintiffs. The county defended on the ground of governmental immunity. The Court undertook an extensive review of the history of sovereign immunity and how it had been applied. The Court held that the central concept that had historically and functionally defined governmental immunity over time was that “core governmental functions” were immune from tort liability. In short, governmental immunity should be based on “considerations relevant to the task of providing necessary protection for essential governmental activities.” DeBry, 889 P.2d at 440. But those considerations are not static or fixed as of 1896. By necessity, they have been, and must continue to be, somewhat flexible over time as government and its role change in response to the needs and demands of society.
¶ 100 Parenthetically, it should also be noted that this Court has not been hostile to undertaking a realistic appraisal of the potential effect of liability on the need to protect government agencies from lawsuits that might impair their ability to carry out then-duties. In addition, this Court has established the doctrine that, apart from governmental immunity, certain kinds of government activities are not subject to liability because there is no tort duty of due care on the part of the government agency or employee, even though the government agency has a “general” duty to protect the public. See, e.g., Madsen v. Borthick, 850 P.2d 442, 444 (Utah 1993); C.T. v. Martinez, 845 P.2d 246, 247-48 (Utah 1992); Ferree v. State, 784 P.2d 149, 151 (Utah 1989). The Court has held government entities not liable for natural catastrophes, or “acts of God.” See Rocky Mountain Thrift Stores v. Salt Lake City, 887 P.2d 848, 852 (Utah 1994).
VI. CONCLUSION
¶ 101 In sum, what is put at stake in Justice Zimmerman’s opinion is whether the judges of this Court are willing to construe the Constitution as the Framers drafted it and apply its plain meaning, or whether — for whatever reason — judges can pick and choose which constitutional provisions we will apply and which we will construe into a nullity.
¶ 102 The protection of person, property, and reputation by due course of law is fundamental to a peaceful society based on the rule of law. Without that protection, property rights can be violated at will and the foundation of capitalism destroyed. Without that protection, the individual loses the safety and integrity of his or her person and reputation. The Framers intended that the people of Utah have those basic constitutional protections. Justice Zimmerman’s “interpretation” of Article I, section 11 is inconsistent with the plain language of that section; it is inconsistent with the historical context of that section; it is inconsistent with this Court’s case law under that section; and it is inconsistent with his own statements in previous cases.
¶ 103 Associate Chief Justice DURHAM concurs in Justice STEWART’s concurring opinion.
. Article I, section 11 states:
All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.
. See infra part II. In the Magna Carta, King John promised: "To no one will we sell, to no one will we refuse or delay, right or justice.” Schuman, 65 Temp. L.Rev. at 1199 (internal quotes omitted). Lord Coke later wrote an influential commentary on Magna Carta and explained this phrase as follows: "Every Subject of this Realm, for injury done to him in goods, land or person, ... may take his remedy by the course of the Law, and have justice and right for tire injury done him, freely without sale, fully without any denial, and speedily without delay.” Id. (internal quotes and alterations omitted).
. The opinion in Hirpa partially reflects the historical approach that Justice Howe took in Ross, but Hirpa, unlike Ross, applied the Berry test in sustaining the constitutionality of a Good Samaritan statute.
. Clearly, the state of the law in 1896 has some bearing on the Framers’ intent in adopting vari*1206ous constitutional provisions. For example, this Court has held that the doctrine of sovereign immunity, as a general proposition, could bar remedies against government agencies notwithstanding Article I, section 11. See DeBry v. Noble, 889 P.2d 428 (Utah 1995); Madsen v. Borthick, 658 P.2d 627 (Utah 1983). That, however, does not mean that the law in 1896 was constitu-tionalized or that a court should decide an Article I, section 11 case on the basis of whether a particular set of facts gave rise to a “cause of action,” as the Utah Court of Appeals did in Day v. State, 882 P.2d 1150 (Ct.App.1994), cert. granted, 892 P.2d 13 (Utah 1995).
.The remedy clause of section 11 is not duplica-tive of the due process clause, although the latter clause has been used in some jurisdictions that have no remedy clause where a remedy clause would more appropriately be used. In giving constitutional protection to the values of "person, property, or reputation,” section 11 differs from the due process clause, which protects “life, liberty, and property." Utah Const, art. I, § 7. Section 11 is concerned with the availability of remedies to vindicate “civil” injuries inflicted by one individual on another’s vital interests. The due process clause is directed more to arbitrary government action and government’s relationship to individuals. Nor is section 11 duplicative of the "uniform operation of the laws” provision in section 24, which is concerned that laws enacted by the Legislature should not discriminate between persons similarly situated. See Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984).
. The right of self-representation that is also contained in section 11 is, of course, of more modern origin than the right of access to the courts and the corollary right to a remedy.
. See Coke's Second Institute, discussed in Hastings, Lyon & Hetman Block, Edward Coke, Oracle of the Law 346-48 (1929).
. The 1225 Magna Carta was a reissuance by King Henry III of King John's 1215 Magna Car-ta. See Tennessee’s Open Court’s Clause at 353-57. The latter authority states:
While the evolution of Magna Carta’s language ended in 1225, the evolution and growth of its significance has continued through the centuries into the present time. Magna Carta was the first manifestation of the fundamental principle that both the governor and the governed are subject to the rule of law. Its history has been one of reinterpretation, and thus its importance lies not in the literal intent of the men at Runnymede but rather in the meaning that future generations have read into its words. Over the centuries, Chapters 39 and 40 of King John's Charter and Chapter 29 of the Magna Carta of 1225 have evolved into two of the most dominant themes in Anglo-Ameri*1207can jurisprudence — the principles of due process of law and the universal guarantee of equal justice for all.
Id. at 356-57 (footnotes omitted).
. In referring to substantive rights protected by the remedy clause of Article I, section 11, I do not mean particular "causes of action” in any technical sense. The term "substantive” when referring to section 11 rights means a right to a “remedy by due course of law." I note that the law of remedies is sometimes referred to as "procedural” law, as opposed to “substantive law,” which defines the rights and liabilities that are given legal effect in the form of causes of action or claims for relief. Looking past the terms of art "substantive” and "procedural,” the critical difference between Justice Zimmerman and me is that in my view, the language in Article I, section 11 giving "every person" a right to a *1208"remedy by due course of law” for injuries to one's "person, property, or reputation” is an enforceable constitutional limitation on the power of the Legislature to abrogate legal remedies. Justice Zimmerman finds no such limitation.
. He contends:
Interpreting the open courts provision to contain substantive protection of particular causes of action, thereby constitutionalizing the common law, is made absurd by the fact that Utah is a state that has a history, prior to statehood, *1210of abjuring the common law entirely. This interpretation is also inconsistent with our pre-Berry case law, which, as I noted above, focused on the procedural guarantee of the open courts provision. Given the inconsistency of Berry’s interpretation of the open courts provision with this history, a substantive interpretation is cast into even greater doubt because of the tension it creates under the separation of powers doctrine of article V, section 1 of the Utah Constitution.
¶ 144.
. Justice Zimmerman relies entirely on an 1855 territorial law to support that extraordinary assertion. See Laws, Territory of Utah 260 ch. LXIV, 1 (1855). That provision was enacted a mere eight years after Brigham Young and the first group of Mormon pioneers entered the Salt Lake Valley. Asserting that this provision, enacted forty years before the Constitutional Convention drafted the Utah Constitution, reflects the history of Utah law is farfetched. In 1898, the Legislature formally adopted the common law as the governing law in the state insofar as it did not conflict with statutory or constitutional law. See Rev. Stat. Utah 1898 ¶ 2488.
. The term "substantive” in the present context means a limitation on legislative power to deny enforcement of substantive rights by abrogating judicial remedies. In another sense of the substantive-procedural dichotomy, it could be said that all the clauses in section 11 are "substantive” limitations on the legislative prerogative. Cf. Evans, 52 Utah 394, 174 P. 825. However, to speak of a "substantive” limitation on the power of the Legislature does not mean that the Legislature cannot change or modify the substantive law of rights, liabilities, and remedies. The substantive limitation on legislative power prohibits the Legislature from arbitrarily abrogating remedies to enforce those rights and liabilities. It should be noted, however, that the law of remedies is sometimes called "procedural” law and sometimes called "substantive” law.
. Justice Zimmerman's argument that the Legislature has unlimited power to abrogate remedies to protect one’s person, property, or reputation is not only contrary to the plain meaning of section 11, but is also inconsistent with his statement that the “plain language of article I, section 11 prohibits the legislature and the courts from denying entirely any remedy for a legal right.” ¶ 148 (emphasis added); cf. Noonan v. City of Portland, 161 Or. 213, 88 P.2d 808, 822 (1938) ("The legislature cannot ... abolish a remedy and at the same time recognize the existence of a right.”). Justice Zimmerman does not explain how his construction of section 11 can be reconciled with that statement.
. To the extent that his conclusion finds support in Ross, which, at least in part, looked to the common law as it existed in 1896 in resolving an issue of the constitutionality of a statutory official immunity provision, Ross was a departure from Berry. The Beny opinion and the test it adopted did not require or justify Ross’s reliance on the common law in 1896 in deciding the issue of official immunity. The decision in Ross did not apply the Berry test at all, nor did it comply with or apply other principles laid down in Berry. Ross held that a prisoner had no remedy for malpractice against a prison doctor because under the common law in 1896, a prison doctor could have been entitled to official immunity. The analysis employed in Ross was not consistent with Berry. Issues of the constitutionality of official immunity under Article I, section 11 are correctly decided under the principles stated in Berry. It is undeniable that Berry explicitly and pointedly emphasized that section 11 did not constitutionalize the common law. See, e.g., Berry, 717 P.2d at 676; Paxton R. Guymon, Note, Utah Prison Physiciaris: Can They Commit Malpractice With Impunity or Does Their Official Immunity Violate the Open Courts Clause?, 1997 Utah L.Rev. 873, 898-99. I shall discuss Ross in greater detail infra.
. The statute of repose barred all remedies irrespective of whether the defendant's conduct was grossly negligent, reckless, or even intentional:
The immunity from suit conferred protects all manufacturers, both domestic and foreign, and all persons in a manufacturer’s chain of distribution, from the manufacturer to the last seller. Section 3 is not aimed at abolishing nuisance suits; on the contrary, its purpose, as shown below, is to bar injured plaintiffs’ judicial remedies in wholly meritorious cases. The immunity granted is not related to the degree of the manufacturer’s culpability in placing a defective product in the stream of commerce. Thus, the immunity is not limited to actions based on strict liability, but extends also to actions based on negligence, gross negligence, recklessness, willful misconduct, and even intentional misconduct, such as a manufacturer’s intentional failure to warn of known dangerous defects that could cause widespread injury or death.
Berry, 717 P.2d at 673 (first emphasis added).
. Justice Zimmerman argues that, in his opinion, the "failings” of Berry's analytical model illustrate why Article I, section 11 provides procedural rather than substantive limitations. ¶¶ 120-38. Assuming arguendo that the Berry “analytical model” is flawed, that does not by any logic prove that a substantive interpretation of the remedy provision in Article I, section 11 is not a correct reading of its plain meaning. Justice Zimmerman’s assertion dial the "plain meaning” of section 11 is demonstrated by the asserted inadequacy of the Berry test is a glaring non sequitur. Whether the Berry test properly applies the remedies clause of Article I, section 11 is wholly separate from the issue of whether that clause establishes a limitation on legislative power.
. Sun Valley Water Beds and Horton both held the exact same architect and builders statute of repose unconstitutional.
. The Court explained:
There must have been some reason for the Legislature to limit the compensation to those employees who are totally disabled and to the dependants of those who are deceased. We are not of the opinion that the Legislature intended to deny compensation to partially disabled employees and to deny them enforcement of their common law right without reason or just cause. Neither are we of the opinion that the Legislature intended to preserve their common law right when it was well aware of the abuses that had brought about occupational disease legislation and the confusion that would exist if the degree of disability controlled the forum. We are convinced the Legislature, because of the nature of the disease, the length of time for development, the difficulty of proof, the inability to properly apportion the negligence between employers, the cost and expense of litigation and the small return to the employee, decided to deal with silicosis through the commission and to require both the employer and the employee to shoulder part of the costs of occupational disease without regard to the negligence of either. The employee to share the burden during partial disability, and the employer when disablement or death occurred.
Id. at 625.
. See supra note 14.
. Justice Zimmerman joined the opinions in Horton and Sun Valley but now argues that those cases illustrate an undue rigidity in the Berry test. Indeed, in Lee v. Gaufin, 867 P.2d 572, 590 (Utah 1993), he wrote a separate concurring opinion holding a statute of repose on minors’ claims for injuries unconstitutional under Article I, section II. He now argues that any statute of repose would be unconstitutional under Horton and Sun Valley. He chooses to ignore the plain fact that the opinions in both Horton and Berry expressly reject the proposition that all statutes of repose violate section 11.
. Justice Zimmerman’s concurring opinion in Condemarin, 775 P.2d at 366-69, provides an eloquent exposition of one of the important reasons that undergirds section 11 rights:
In Berry, this Court firmly staked itself out as finding substantive protections in article I, section ll’s guarantee to "every person” of a "remedy by due course of law” for "an injury done to him [or her] in his [or her] person, property or reputation.” Today’s decision is a logical successor to Berry. ...
The present case has given me a better appreciation of the wisdom of including article I, section ll’s guarantee in Utah's basic charter. The constitution’s drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry, 111 P.2d at 676; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note, State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation). At any one time, only a small percentage of the citizenry will have recently been harmed and therefore will need to obtain a remedy from the members of any particular defendant class. The vast majority of the populace will have no interest in opposing legislative efforts to protect such a defendant class because the majority will not readily identify with those few persons unlucky enough to have been harmed. And those few persons directly affected will, in all likelihood, lack the political power to prevent the passage of legislation that, in essence, requires every member of the citizenry who is injured by members of the defendant class to bear some or all of the cost of those injuries.
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To accord these rights the respect tire drafters intended requires that we approach challenges to legislation alleged to infringe article I, section 11 differently than we otherwise view claims of unconstitutionality that are directed at ordinary economic legislation.
Id. at 366-68.
. For example, he contends that McCorvey v. Department of Transportation, 868 P.2d 41 (Utah 1993), held that the cap on damages recoverable from a government entity in Utah Code Ann. § 63-30-34(1) did not violate Article I, section 11 because there was no right to recover damages from the state for injuries resulting from the negligent maintenance of public roads. But in so ruling, the Court did not refer to the common law as it existed in 1896. Of course, the common law in general is relevant to whether the law provides a remedy by "due course of law" simply because the common law historically and still today is the repository of most of the remedies that the law provides for the protection of "person, property, and reputation.”
. As noted, state constitutions in several states specifically recognized sovereign immunity as an exception to the substantive rights protected by their open courts provisions. See, e.g., Tennessee’s Open Court’s Clause at 436 & n. 602.
.Justice Zimmerman refers to the "absurdity" of common law rules that allowed an individual injured on a city road because of government negligence to recover damages but did not allow an individual injured on a state road because of government negligence to recover damages. See ¶ 124. Indeed, that is an absurdity, but it is not an absurdity that has anything to do with Article I, section 11. It is an artifact of the doctrines of sovereign and municipal immunity as those doctrines developed historically. That inconsistency does not now exist. The Legislature has waived immunity with respect to both types of roads and treated them exactly the same for immunity purposes. See McCorvey, 868 P.2d at 47.
The effect of Condemarin and DeBry is that the scope of governmental immunity in relation to Article I, section 11 should be decided on the basis of fundamental policy considerations in light of modern conditions, with due consideration given to the presumption of constitutionali*1222ty accorded the Governmental Immunity Act. See DeBry, 889 P.2d at 440.
. Madsen relied on Brown v. Wichita State University, 219 Kan. 2, 8-12, 547 P.2d 1015, 1022-24 (1976), for the proposition that Article I, section 11 does not malee sovereign immunity, as such, unconstitutional under an “open courts” clause. The Court in Madsen stated that it concurred in “the reasoning and result” of Brown. Madsen, 658 P.2d at 629. The Kansas Supreme Court in Brown made clear that its guaranteed remedy clause in its open courts provision, which is virtually identical to Utah's, is a substantive limitation on legislative power, as are a number of other states’ guaranteed remedy provisions that are referred to in Brown. Brown, 547 P.2d at 1024. The Kansas Supreme Court held that "a broad application of Section 18 [the Kansas open courts provision] would jeopardize retention of governmental immunity even for governmental functions.” Id. at 1024. That is the same position that this Court adopted in Madsen, 658 P.2d 627 (Utah 1983), Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989), and DeBry v. Noble, 889 P.2d 428 (Utah 1995). For similar holdings in other states, see Firemen’s Insurance Co. v. Washburn County, 2 Wis.2d 214, 85 N.W.2d 840 (1957) (construing Wisconsin constitutional provision similar to Utah's), Williams v. Columbus, 33 Ohio St.2d 75, 294 N.E.2d 891 (1973), Cords v. State, 62 Wis.2d 42, 214 N.W.2d 405 (1974), Hazlett v. Board of Commissioners, 168 Okla. 290, 32 P.2d 940 (1934), and Lundbeck v. State Department of Highways, 95 Idaho 549, 511 P.2d 1325 (1973).