In May of 2012, the Arkansas Access to Justice Commission, Clinton School of Public Service, and William H. Bowen School of Law co-hosted a conference titled Representing Hope: New Paradigms for Access to Justice. Bringing together members of the legal, medical, education, business, government, and nonprofit sectors, the conference focused on developing strategies for how the legal system can address issues that perpetuate poverty. Topics included education, health, housing, and hunger.
The Arkansas Journal of Social Change and Public Service is honored to feature a series of pieces resulting from the Representing Hope conference. Our first piece is the opening keynote address of the conference, delivered by the Honorable Jess Dickinson, Presiding Justice of the Mississippi Supreme Court and charter and organizing member of the Mississippi Access to Justice Commission.
Opening Keynote Address
Presiding Justice Jess Dickinson
Mississippi Supreme Court
May 29, 2012
On September 6, 1620, one hundred and two people – among them, three pregnant women and over thirty children – left their homes, churches, friends, and in many cases their families, to board a ship called the Mayflower, and set out to build a new life on the North American continent. By the time they reached what we today call Provincetown Harbor on Cape Cod, they had discussed how they would govern themselves in this new land that boasted abundant natural resources, but no laws, legislatures, or courts. These Pilgrims drew up and signed an agreement called the Mayflower Compact. And although America was not to be born for another hundred and fifty six years, her heart began to beat that day. You see, the Mayflower Compact proclaimed – loud and clear – the concept of EQUAL JUSTICE FOR ALL.
By 1787, America had won her independence. She was eleven years old and, like most 11-year-olds, she needed a little guidance. So our founders began the process of drafting a Constitution. When they first met on May 14, 1787, the delegates began to discuss the purpose and content of the constitution. The discussions turned into debates, and then, passionate arguments. Such men as Thomas Jefferson and James Madison continued – day after day – to fight for the provisions they believed necessary.
Finally, after 126 days, they reached agreement. When finally they began to actually write our Constitution, they didn’t begin with Article 1 – they began with a paragraph that proclaimed to world, and to future generations, why they fought for independence and freedom. And within that paragraph, they listed five reasons for the constitutional provisions that followed.
The first was to form a more perfect union. The second was not to provide for the common defense. That came later. Nor was it to promote the general welfare or secure the blessings of liberty. Those also came later. The second reason our founders listed for establishing our Constitution was to establish justice. The first seventeen words of our Constitution are: “We the People of the United States, in order to form a more perfect Union, establish Justice, . . .”
And here we are, over two hundred and twenty years later, with a Congress filled with men and women, all of whom I believe to be American patriots. So why would they consider –even for one second – abolishing the only program they have for providing poor people equal justice and equal access to our courts? I think the answer lies, at least partially, in the lyrics of a song written by Paul Simon in 1968, called “The Boxer.”
The song tells a story about a poor boy who struggles to overcome loneliness and poverty in New York City. According to Simon’s lyrics, the poor boy can be found “seeking out the poorer quarters where the ragged people go – looking for the places only they would know.” And he cries out for help, but no one hears because – according to the lyrics – “a man hears what he wants to hear and disregards the rest.”
For the past eight years, I have taught at the Mississippi College School of Law. And every year I ask my students what they think makes America a great country, and every year almost all of them say it’s because we have a great constitution. They proceed to tell me about the First Amendment freedoms, and the protections of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Some mention the Nineteenth Amendment giving women the right to vote.
When they finish their praise of our Constitution, I say, “Let me read you some interesting excerpts from some other constitutions around the world;” and I always begin with the People’s Republic of China:
Article 35 Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association . . . .
Article 36 Citizens of the People’s Republic of China enjoy freedom of religious belief.
Article 37 Freedom of the person of citizens of the People’s Republic of China is inviolable.
Article 39 The residences of citizens of the People’s Republic of China are inviolable. Unlawful search of, or intrusion into, a citizen’s residence is prohibited.
Article 41 Citizens of the People’s Republic of China have the right to criticize . . . any state organ or functionary.
Article 48 Women in the People’s Republic of China enjoy equal rights with men in all spheres of life . . . .
And then I read a couple of provisions from the 1936 constitution adopted by the communists in Russia – 19 years following the Bolshevik Revolution. Some call it the Stalin Constitution:
Article 125 [C]itizens of the U.S.S.R. are guaranteed by law: (a) freedom of speech; (b) freedom of the press; (c) freedom of assembly, including the holding of mass meetings; (d) freedom of street processions and demonstrations.
Article 127 No person may be placed under arrest except by decision of a court . . . .
I then say to my students: “If you still aren’t convinced that having a great Constitution is not what makes America great, let me read from Germany’s constitution when Hitler came to power in the Third Reich”:
Article 107 In the Reich, and in the states, administrative courts have to exist, according to the
laws, to protect the individual against bureaucratic decrees.
Article 109 All Germans are equal in front of the law. Men and women have the same rights and obligations. Legal privileges or disadvantages based on birth or social standing are to be abolished.
Article 135 All Reich inhabitants enjoy full freedom of liberty and conscience. [And my personal favorite] Undisturbed practice of religion is guaranteed by the constitution, and is placed under the protection of the state.
We do, of course, have a great constitution. The Fourteenth Amendment says that no “state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And on the west side of the United States Supreme Courthouse in Washington, above eight marble columns, you will find the familiar words: “Equal Justice Under Law.” On the east side of that building, you will find carved in the marble the words: “Justice – the Guardian of Liberty.” They are all pretty words; but they don’t mean anything if they are not applied to the lives of the least among us.
Krisina and Daniel Chamblee. The Chamblees are good people. Proud people. But Daniel is disabled, Krisina is not educated, and they live in poverty. After a neighbor filed a false complaint against them, social workers from a department of the state government drove up to their home, took their children, and drove away. Now, let me ask a question: Do you think our Constitution’s guarantees of due process of law and equal protection of the laws mean the State could not take and keep the Chamblees’ children without providing them a lawyer so that they could stand equal before the court when they fought to get their children back? If you do, you’d be wrong – at least according to current constitutional interpretation. And while some state legislatures and courts have provided some protection to people like the Chamblees, others – like Mississippi – have not.
Tara Walker, a legal services lawyer funded by the Legal Services Corporation – the entity established by Congress to distribute congressionally-appropriated funds to legal services organizations in the states – took the case, made the appropriate arguments in court, and got the Chamblees their children back. When Daniel was later interviewed about the case, that big, strong man looked at the interviewer – tears in his eyes – and said, “I honestly believe without legal aid, we would never have seen our children again.”
Judy Mills. For years, Judy was a victim of abuse. On one occasion, her husband picked her up and threw her into a wall, then slashed her face with a fork. He would leave her and their two children for long periods of time without money – and sometimes with no electricity or food. Later, when asked how she felt during those dark times, Judy said: “As horrible as it sounds, I really . . . I just wanted him to go ahead and kill me.”
Judy found no friend in the Fourteenth Amendment’s profound promises; nor was she comforted by the words carved in marble above the Supreme Court columns. But she did get help from Brent Schellhammer, who also worked for a legal services organization funded by the Legal Services Corporation. Brent took up Judy’s case and helped her get a divorce, child support, and protection for her and her children.
Anna Alaman. This disabled teenager had a simple dream of just helping other people. But her disability and medical problems led the State to remove her from her home and school, and move toward putting her in a nursing home or an institution. Later, she was asked what went through her mind when the State threatened to put her in an institution. I believe Anna’s simple words should be engraved above the doors of every courthouse in the country, so we judges would see them every day when we go to work. She said: “I felt like, what am I gonna do? I don’t know what to do. I don’t know the laws, you know . . . or what my rights are. What am I gonna do?”
Anna turned to Lucy Wood, an attorney also funded by the Legal Services Corporation, for help. Lucy did know what Anna’s rights were, and she knew what to do. She took Anna’s case, stopped the commitment proceedings, and forced the school to take Anna back so she could complete her education. Anna now has a family and she leads a full and productive life.
Thankfully, we still have a fair number of judges who believe the words in our Constitution mean what they say; judges who are willing to enforce the constitution, even when it is very difficult to do so. But may I say to my fellow judges, we still have a lot of work to do. Many of our colleagues have not yet fully accepted the constitutional role of judges: that we judges are responsible for making sure our trials are fair; that we are the protectors of constitutional rights; that we are supposed to keep the “equal” in equal justice for all.
And if the Congress and some of the legislatures continue to emasculate legal services programs – as if they were just run-of-the-mill social programs capable of being wiped out with the stroke of a pen – then we have some difficult, but necessary, constitutional decisions ahead of us – much the same as an Arkansas chancellor’s courageous 1994 decision – later upheld by the Arkansas Supreme Court – in holding the State was violating the Arkansas Constitution by funding its schools inequitably. I am proud and privileged to call myself a friend of that chancellor – Justice Annabelle Imber Tuck – who is not only a champion of education in Arkansas, but is a well-known champion of equal justice throughout this country.
One final word to my fellow judges: You know as well as I do that the lack of adequate funding for legal services has drastically increased the number of poor persons coming into court to represent themselves. Please, let’s reject this false notion that the major problem caused by self-represented litigants is clogged dockets. The major problem is that our courts are producing unfair trials and unjust results.
Poor people who represent themselves often lose, simply because they don’t know what to do, and they can’t afford a lawyer. I think that most of our citizens still believe our courts are fair, but I also think we are losing ground. Over 46 million people in this country live in poverty; over 16 million American children live in poverty. And for them, every day, we close our courthouse doors a little bit more.
I don’t have to tell you what is going on in Washington with respect to legal services funding. We are all working hard to get the Legal Services Corporation appropriation as close to the $402 million Senate number as possible. And we may have to settle for that . . . but even if the Congress passes the $402 million Senate bill tomorrow, and the President signs it into law, I will not celebrate and say I am satisfied with it.
When we talk about providing equal justice in our courts, we are talking about an essential function of our government. We’re not talking about building some highway or park or providing cell phones to the poor. By the way, did you know the federal government spends a billion dollars a year providing cell phone service to poor people? I have no problem with poor people having cell phones, but . . . it is unbelievable that many members of Congress do not understand that equal justice and equal access to the courts are more important than cell phones. Can you imagine how much we could accomplish in providing legal services to the poor, if –instead of giving us the crumbs from the table – they gave us that billion dollar cell phone appropriation?
The simple truth is, we will never fulfill the 14th Amendment’s promise of due process and equal protection until all three branches of our government recognize that poor people should not be forced to go into court without a lawyer, when fundamental rights are in jeopardy – and that includes your children. And I assure you, $402 million won’t get that done.
We need a law or a constitutional interpretation that says to the Chamblees, and the Judy Mills, and the Anna Alamans of this country, the State cannot put your basic fundamental rights at risk without providing you a lawyer. I know some call that Civil Gideon – but I call it a big part of what is necessary to keep America great.
So when my law students turn it back on me, and ask: what DOES make America great? I respond, it’s people like Tara Walker, Brent Shellhammer, and Lucy Wood; people that go out there every day and fight for the principles on which this country was founded; people who have dedicated your lives to the proposition that due process and equal protection are more than just pretty words carved in marble; people who believe in their heart of hearts that – even though poor people (even Paul Simon’s ragged people) may not have equal bank accounts or country club memberships – they have a constitutional right to stand equal before the law; people who believe we should not just HAVE a great constitution – we should make it work . . . for everyone.
On behalf of forty-six million Americans who live in poverty; on behalf of sixteen million precious American children who struggle every day in poverty, let me say “thank you” –thank you for who you are, and for what you do. Thank you and God bless you.