Our Greatest Constitutional Shortcoming: Legal Access


Last month, across the country, we celebrated Constitution Day. And God knows, there’s much to celebrate. That’s especially true in a year in which the Supreme Court has chosen, even if belatedly, to recognize the full humanity of lesbians and gay men. Some steps forward are not timid stumbles.

Still, on Sept. 17 we heard little about the greatest defect in our constitutionalism – the tragic and delegitimizing reality that millions of Americans are priced out of the effective use of the civil justice system because they can’t afford to pay the fare.

We carve “equal justice under law” on our courthouse walls. We swear allegiance to it every day. For a half-century, we’ve announced as a fundamental principal of our constitutional law that “there can be no justice where the kind of trial a person gets depends on the amount of money he has.” But what we do has almost nothing in common with what we say.

The World Justice Project’s Rule of Law rankings recently listed the United States 66th of the 99 nations studied in access to justice. Each year, the report places us at or near the very bottom of the world’s advanced and wealthy nations. The rapporteurs explained, once again, that socio-economic status matters far more in the US than in other advanced nations. We talk the most about a vaunted commitment to equal justice. We talk the most and do the least.

New York’s recent study confirms, yet again, national findings that less than twenty percent of the civil legal needs of the poor and near poor are met. Here in North Carolina, legal services providers, unable meet the crushing demand, report that thousands lose their homes, their jobs, their unemployment compensation, their health care benefits, their access to protective orders because they don’t have lawyers. They deserve these things – they’d get ‘em if they had a lawyer. But since they’re poor they don’t get what, by right, they’re meant to have. What passes for civil justice among the have-nots is stunning.

The Legal Services Corporation reports that over 50% of those who seek legal assistance from LSC grantees are turned away because of inadequate resources. Since 2008, the number of Americans eligible for legal aid has risen by over 25%. Still, legal services appropriations have been markedly cut — forcing dramatic layoffs of attorneys and paralegals. It seems the Congress and state legislatures have concluded that last place among the wealthy democracies isn’t bad enough; we’ve got to do more to step on the necks of those already at the bottom.

The last three years in North Carolina, we’ve had had more people living in poverty than at any other time is our state’s long history. Despite exploding demand, because of cuts at the national level, Legal Aid of NC has had to close a number of offices and lay off an array of attorneys across the state. Given that, the General Assembly, in last year’s session, decided it would be an opportune time to end the state’s modest appropriation for legal services – in order to help pay for tax cuts for the wealthiest among us. I’m not sure I’ve got the right words to capture the moral propriety of that.

They also imposed a bevy of new restrictions and reporting requirements on one of our legal services organizations because it had the gall to win a few cases for the farmworkers in eastern North Carolina. The message was clear – we’re watching you. And we won’t stomach poor people exercising even the modest constitutional rights they have. Remember your place.

A few years ago, during Justice Sotomayor’s confirmation hearings, Sen. Lindsay Graham rhapsodized that the best thing that could happen to the world’s justice systems would be for the United States’ legal regime to be replicated and exported to every nation on the earth. He wouldn’t have said that if he were poor. Or if he felt obliged to represent anyone who was.

Gene Nichol is Boyd Tinsley Distinguished Professor of law and President Emeritus of College of William & Mary

From The Progressive Populist, October 15, 2015


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