(While many of us will enjoy the holidays, we shouldn’t forget about those who by circumstances of life won’t be so lucky. This is an essay to remind us that while much has been done to improve our society, there remains much more to do.)
Rights are funny things. We may believe we know what they are, but often we are less certain where they came from. Do they come from God or are they inimical to the individual? Are they revealed by history or are they conferred by law? And are they narrowly held by an individual or is there a communitarian aspect to “rights” analysis?
In my last post, I wrote that in Rhode Island everyone had a statutory right to counsel. The basis of my contention is the recognition by the state’s Supreme Court of a 1495 English statute that has been repeatedly embraced by the Rhode Island legislature from colonial times to the present.
It may seem unusual that a statute from over 600 years ago would have some import to our present. It’s not. Notions of rights and liberties are derivative based on history and past usages. Some of us think that the framers of our Constitution were divinely inspired. Meaning no disrespect to those who see the hand of the Almighty in every aspect of life, for the most part the framers were hard headed realists, educated in the truths of their time, and battle tested in the first of its kind successful revolution for independence from the strongest nation on earth.
That is not to say that the religious teachings and traditions extant in the mid-1700s had no impact on the framers, they certainly did. But so too did history, philosophy, art, and law. The framers were well educated men who had an appreciation of the cumulative nature of the law they sought to enshrine in the Constitution.
And note that I said “men” in the preceding paragraph. No women served in the Constitutional Convention for one basic reason - as a group, women had few rights, and certainly no political rights, independent of men. Perhaps the closest influence a woman had on the convention in Philadelphia was when Abigail Adams wrote to her husband John, admonishing him to “not forget the ladies.”
These men were not a cross section of the men in the various states. Many had high level political experience, or they important bankers or owners of large agricultural tracks. To varying degrees, all were men of property, where too many delegates owned other humans. In the slave states of the 1780s, African Americans were the chattel property of their owners. If women had only indirect muted voices with which to influence their delegate husbands, the slaves had no voice at all.
It could be argued that the delegates of the Philadelphia Convention overstepped their authority when they crafted a new form and structure of government. Their states sent them to the convention, the avowed purpose of which was to amend the existing Articles of Confederation. After approximately 57 days the delegates amended the Articles by throwing them out.
Two of the more vocal historians who ripped the gloss off the convention were Charles and Mary Beard. The Beards argued that the purpose of the convention was to, in fact, devise a stronger central government in order to stabilize and regulate commerce between the states, along with commerce between the new government and other nations. They weren’t wrong, just a tad cynical. Madison in particular was well aware of that prevalent economic dysfunctions were as lethal a threat to the future of the new nation as were the British to our north.
Clearly, the product of the 1787 Constitutional Convention was not the manifestation of the Declaration of Independence which stated “…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
As we know, some rights were alienable. Men who didn’t own property were often not allowed to vote. Women were often not allowed to own real property. And African Americans, until the ratification of the 14 Amendment, under the holding in Scott v. Sandford, were not deemed to be citizens of this country. But if the seeming hypocrisy of ”inalienable rights” wasn’t immediately apparent, 60% of the slave population in the south was counted as free citizens for purposes of representation in the federal House of Representatives.
Put simply, 60% of non-citizens were counted as fictitious citizens to determine the number of real citizens to serve in Congress. No wonder people hate politics!
Cleary, we have made strides over the past 240 years. Our society and culture are far beyond anything the framers of the Constitution could have ever imagined. More people have more rights, or as the Declaration might put it “liberties,” than ever in our history.
Our economy is the envy of the world, but our national wealth is concentrated into the hands of a few to a degree not seen since the robber barons of the Gilded Age.
Prejudice is prevalent throughout the country. Blacks, Latinos, Asians are all subject to abuse by bigots. Women have yet to achieve true parity in our society. Class warfare is to a level not seen in the lifetimes of most of us.
And Justice too often seems to be a gamble. Many in our society believe that there are three tiers of Justice: for the rich, powerful and connected there seems to be little legal consequence for their actions; for the vast majority of us, the full weight of the law is brought to bear; and for the poor, there is no Justice in any sense that we know it, just a series of seemingly random, capricious decisions against which the poor have little defense.
In my last post I wrote about a right to appointed counsel in Rhode Island for people who cannot afford an attorney. So I‘m not being misconstrued, I don’t mean this to be like an Oprah show where everyone receives the prize listed under their seats. Counsel should only be appointed for parties who certify as being in forma pauperis. Appointed counsel should never be provided to someone who can afford an attorney’s services but are too cheap to engage one.
I am not making a broad appeal to the better angels of our collective nature. I’m making an argument based on an old English statute enacted in 1495 that was incorporated into Rhode Island’s General Laws for at least 240 years. And Rhode Island is not alone. Many other states have incorporated the statute into their state codes, states which were not a part of the 1776 Revolution for independence from England.
Opponents to providing publicly funded attorneys to low-income parties often cite the expense involved. Courts for the past 40 years, when even touching on this issue, have raised the specter of the impact that such a program would have on the public fisc. These opponents are being proven wrong by an increasing body of public and private studies that establish that not only does the program pay for itself, but also produce returns on investment in triple digits.
That is not to suggest that any cost of such a program is an insignificant consideration. But when individual rights and liberties are at issue, we must do all that we can to ensure that rights and liberties are respected and protected. In Ingraham v. Wright (1977), the United States Supreme Court wrote,
“The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth, was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); see Dent v. West Virginia, 129 U.S. 114, 123-124, 9 S.Ct. 231, 233-234, 32 L.Ed. 623 (1889). Among the historic liberties so protected was a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security.“ (Italics mine)
It is nearly impossible to obtain judicial relief for unjustified intrusions on personal liberty without the ability to obtain legal counsel and representation. To operate a meaningful program to provide counsel and representation, an Access To Justice Commission must be formed and adequately resourced. Sadly, coming up to 10 years, Rhode Island accepted an ABA grant to assist in forming such a Commission, but as of this writing no such Commission exists.
Our reluctance to assist approximately 20% of our population sends a powerful message that they are insignificant second class citizens. Robert Kennedy, on April 5, 1968, in a speech the day after the assassination of Martin Luther King Jr., spoke about violence. After briefly touching on the “bullet and bomb in the night,” he identified another kind of violence. This is the violence of institutions. This violence stems from the failure of the our governmental and private institutions to meet the needs of those they were formed to serve.
Having a statute laying dormant due to inaction, and the failure to form a meaningful Access To Justice Commissions are acts of institutional violence. In this holiday season, while many of us celebrate the holidays with families and friends, let us not forget those who are not so lucky. So with a week to go, I have made my own list for Santa. It consists of four things:
That someone takes on the challenge to activate the part of 11 Hen. 7 c. 12 that remains dormant. Perhaps a collaboration with the state’s LSC, a private non-profit LSO that was formed to achieve systemic change, along with our state’s law school could work together to successfully bring a case to bar;
The state’s law school, working with members of the Bar and Judiciary, could take the lead in working to establish a long overdue Access To Justice Commission. They can bring a variety of expertise and resources to bear on this task. Other states have robust Commissions that we can learn from;
That some state legislator will introduce legislation for the aforementioned Commission, a clear and unambiguous statute codifying the right to counsel for all Rhode Islanders, and the appropriations to adequately fund both; and
All of the above.
Going into the New Year, I intend to raise this issue anywhere at any time in any venue that will have me. For myriad reasons I’ve been too quiet on this issue. That all ends in 2023.
Until then, and hoping that you will join me in this quest to improve conditions of others, I wish all a safe, happy, and healthy holiday season and a glorious New Year!
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