Our Greatest Constitutional Shortcoming

September 17, 2015
Guest Post

by Gene R. Nichol, the Boyd Tinsley Distinguished Professor, University of North Carolina School of Law

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

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

Still, on September 17 we usually hear little about the greatest defect of 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 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 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 wealthy nations. The rapporteurs explained, yet again, that socio-economic status matters far more in the U.S. than in other advanced nations. We talk the most about a vaunted commitment to equal justice. 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. In my own state, legal services providers, unable meet the crushing demand, report that thousands of our citizens lose their homes, their jobs, their unemployment compensation, their health care benefits, and their access to protective orders because they don’t have lawyers. What passes for civil justice among the nation’s poor is astonishing.

The Legal Services Corporation reports that over 50 percent 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 more than 25 percent. Still, legal services appropriations have been markedly cut -- forcing dramatic layoffs of attorneys and paralegals across the country. It seems the Congress and state legislatures have concluded last place among the wealthy democracies isn’t bad enough – we must do more to step on the necks of poor people.

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