Will Access to Justice in the 21st Century Resuscitate, Shun, or Re-Tool its Historic Fundamental Rights Jurisprudence?

Leonard W. Schroeter^*

Introduction

This is the Fifth Access to Justice (ATJ) Jurisprudence Workshop, prepared by the ATJ Board's Jurisprudence Committee, for its Annual Conference. This year, the Workshop is a part of the WSBA Celebration 2000. On each prior occasion, we have focused on specific issues of ATJ jurisprudence, documenting the issue with Conference papers, written to define, and stimulate further research and action on our concerns. This year, in keeping with the new century theme, we trace the past, and view the future ? a task of such magnitude that the character of the Workshop document can only identify issues, outline the main themes, provide some bibliographic assistance, and append relevant prior articles and papers pertinent to our subject. Most of the Appendices appeared in the WSBA News in 1999 and early 2000.

Our theme is a question of the future of ATJ. Our discussion is both national and global in scope. Therefore, there will not be significant reference to state constitutionalism, which is varied and specific in each state. Washington State's ATJ jurisprudence will be left for another time. Since this is a broad look at ATJ in the past, and questions for the future, we can only say that in this new Century, given the present unsatisfactory Federal Constitution jurisprudence, state ATJ constitutionalism, and specifically Washington's courts, may well be a much richer, hospitable, and historically faithful judiciary for the protection of fundamental rights.

Our survey is of such wide breadth, that we must limit it to certain themes. The past is subject to interpretation, opinion, and competing ideology, most visible to the bar and public from opinions of the judiciary, most particularly, the United States Supreme Court. History is not necessarily objective, but is seen through the lenses of the commentator, and often formed by strongly held and competing values. The future is only a question as reflected in our Workshop title. Our question, however, incorporates an affirmation of the past ? that the jurisprudence of access to justice is a Fundamental Right.

Despite judicial reiterations of ATJ fundamentality by the United States Supreme Court, federal and state judiciaries, Congress, state legislatures, and the executive branch often ignore this fundamental constitutional right, making a mockery of "Equal Justice Under Law" carved above the Supreme Court. Even worse, much of the judiciary, case-by-case, spurn the fundamentality of access to justice, by often characterizing the impediments to or destruction of that right as a policy question. Policy issues are legislative, thus transitory; subject to powerful interests; and often purchasable. The only tenable rationalization for this view is that it is required by political (electoral) democracy, which is seen by some as trumping fundamental rights. Rarely does the unique American constitutional doctrine of separation of powers get raised. Nor does the right-bearer receive the protection of the law by their calling attention to Marbury v. Madison, and judicial review. Even less often is the character of the right itself understood, as pronounced almost 800 years ago in Magna Carta and protected in our founding constitutional document ? The Declaration of Independence, as well as in most state constitutions. Thus, at the conclusion of the Twentieth Century, this fundamental right was in jeopardy.

If we ask the question as to what would be meaningful ATJ in the Twenty-First Century, certainly it must include fealty to the values of Equal Justice Under Law. But its applications are not the same as those existing at the time of Magna Carta; nor during the continuing transition of the Common Law; nor in 1776, or 1789; nor at the mileposts of changing inclusiveness in American history and jurisprudence. In 1225, right-bearers essentially were feudal lords seeking to curtail the divine right of kings. The Common Law endured stasis and refurbishing. Its principal strength was its change. For hundreds of years, feudal landlords and nobility maintained rigid class lines, topped by royalty and the divine right of kings. The Industrial Revolution markedly changed the beneficiaries of the law, adding the rising bourgeoisie. When the U.S. Constitution was adopted, despite the values of the Declaration of Independence, slavery was institutionalized and protected. Women were excluded. And a white, land-owning gentry wielded power. To their everlasting credit, they adopted values that had permanence. Those values were not based or related to feudalism or capitalism, nor in the Nineteenth Century, change from a largely agricultural society to an expanding industrial one. Corporations historically were the creatures of the state, created by it, and subject to termination if they did not adhere to their charters. The century also witnessed the age of enlightenment, and the burgeoning of democratic ideas. The right to vote led to rising expectations, fueled by the freeing of the slaves, and their being included constitutionally as citizens and voters. The suffrage movement also dramatically accelerated rights consciousness.

At each stage, however, the privileged classes and their representatives retained legislative and executive power, and controlled the judiciary, who in the large saw the law from privileged eyes, and they fought desperately and successfully to maintain their power relationships. Although the 20th Century changed factually, and the fundamental constitutional values were generally unaltered, judicial constitutional interpretations were largely protective of the rich and powerful.

There have always been American constitutional "originalists" who defend their views by the status quo as existing in the late 18th century, despite the embarrassing contradictions, and inability to condone slavery, and the rejection of women's suffrage. Yet, inexorably, there is change. History is a guide to the past, present and future only if it recognizes the permanence of ethical, philosophical, and religious precepts of human dignity, natural and unalienable rights, and the self-evident truths of equality, life, liberty, and pursuit of happiness. These values have been applied and understood in government, political, social and juridical structures, some lasting for centuries, others for decades. Yet, today, change is so rapid, that a decade may witness more transition than a century did when I was born.

Much of recorded history describes who has power, how it is used, maintained, diminished or lost. These struggles culminate in the great charters of our history: the manifestos, constitutions, declarations, historical scriptures, such as the Gettysburg Address. They begin before Magna Carta, and will continue past the Universal Declaration of Human Rights. What is remarkable, is that for millennia, despite competing views and proponents? absence of power, the favored and triumphant values were, and are, justice, human dignity, and rule of law. But always they required eternal vigilance and struggle.

In answering our question as to the future of meaningful ATJ, we will factor in rapidly changing technology, globalization, and diversity, along with the overwhelming corruption and materialism altering our legal and governmental structures. Questions raised in the ATJ Jurisprudence Committee planning this workshop include whether this globalization will, in the future, prevent questions of rights even be resolved on a national level? Whether there is any meaning left to the notion of federalism? Is there a worldwide spread of expectation by large numbers of people, who want justice and to be treated with dignity? Can such popular rising expectation of access to justice and rule of law affect the power structure enough to compel change in the next century? What will the consequences be of the cybernetic revolution in terms of people's rights?

The past is documentable, and interpretive. The future is unknown and speculative. Science, economics, and technology are all fallible. They overstate their predictive powers. Change is the only certainty. Accelerated rapidity of change is overwhelmingly likely. In a world where virtually all communication worldwide is in the hands of the few and the powerful, where burgeoning of materialism is rampant, where worldwide instant communication is in the hands of those who have computers, is it reasonable to believe human rights values will prevail? Can we predict the future? Yet it must be said, that the only reliable standards for the future are the fundamental values of the past, and present, that have adapted to change. Can we believe, and hope, that with struggle, and perseverance, those values for all humankind can prevail?

The very essence of civil liberties, certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection ? Every right, when withheld, must have a remedy, and every injury its proper redress.

Chief Justice John Marshall, Marbury v. Madison (1803).

We must never forget, that it is a constitution we are expounding ? a constitution intended to endure the ages to come, and consequently, to be adapted to the various crises of human affairs.

Chief Justice John Marshall, McCulloch v. Maryland (1819).

There are some fundamental principles which are of controlling effect. The right to sue and defend in the courts is the alternative of force, in an organized society. It is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship ? [It] is granted and protected by the federal constitution.

Chambers v. Baltimore & O.R. Co. (1907).

One cannot accept the task of defining the jurisprudence of ATJ without an overwhelming sense of inadequacy, humility, and even hubris. To capsulate it does it injustice. This paper, with all its attachments, is like a sound bite in the enormity of legal literature, treatises, judicial opinions, and historic tomes that have preceded us. At best, one can identify some documents that seem highly pertinent to the writer, and the task of this day. One slim, dog-eared, famous treatise helps us to begin our search, which, after all, is The Nature of the Judicial Process. Its author, Justice Benjamin N. Cardozo, describes in simple and understandable language, the conscious and unconscious processes by which a judge decides a case. He discusses the source of information to which he appeals for guidance. He analyzes the contribution that precedent, logical consistency, custom, social welfare, and standards of justice and morals have in shaping his decisions. He states that the directive forces of our law include philosophy, history, custom, and fundamental conceptions of jurisprudence. Principles are complex bundles, and in the search for consistency, logic and symmetry must be balanced. He then states:

Finally, when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of other and larger ends ? to the force which in our day and generation is becoming the greatest of them all, the power of social justice which finds its outlet and expression in the method of sociology.

The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. "Ethical considerations can no more be excluded from the administration of justice which is the end and purpose of all civil laws than one can exclude the vital air from his room and live." ? There is an old legend that on one occasion God prayed, and his prayer was "Be it my will that my justice be ruled by my mercy." That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with the lure of scientific order.

There is much wisdom crystallized in these slim pages, seemingly gathering the wisdom of the ages, and summarized by Justice Cardozo as follows:

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.

 

In thinking about our past, and what it means for our present and future, it is essential to understand the profound significance of our founding constitutional document ? the Declaration of Independence. It is discussed more fully in Appendix C. In 1997, Pauline Maier, Professor of American History at MIT, and a foremost authority on the era of the American Revolution, wrote perhaps the most important book on the Declaration of Independence in three quarters of a century, titled American Scripture: Making the Declaration of Independence. The importance of the Declaration is stated by the author in her Introduction:

The historical significance of the Declaration did not lie in the principles it stated except insofar as it restated what virtually all American patriots and Loyalists alike ? thought and said. ? That was exactly what the Declaration was meant to do: it was according to Jefferson, "To be an expression of the American mind." ? As a statement of political philosophy, the Declaration was therefore purposely unexceptional in 1776. ? I went on to tell another story, one that has been told only in fragments, about how, after a period in which the Declaration of Independence was all but forgotten, it was remade into a sacred text, a statement of basic, common, enduring truths often described with words borrowed from the vocabulary of religion. ? It struck me that the Declaration itself was peculiarly unsuited for the role it came to play, essentially as a statement of basic principles for the guidance of an established society which after all had a Bill of Rights that was supposed to perform that function. How and why did the Declaration of Independence come to assume the role it has assumed in American society? A statement of values that more than any other expresses not why we separated from Britain, and not what we are or have been, but what we ought to be, an inscription of ideals that bind us as a people, but have also been at the center of some of the most divisive controversies in our history. The book, then, tells two different, but related stories ? that of the original making of the Declaration of Independence and that of its re-making into the document most Americans know, remember, and revere.

Maier also carefully explored how the re-making of the Declaration occurred ? "Lincoln did it" in his Gettysburg Address, establishing the "quasi-religion of Equality." It is difficult to understand America and its values, and even why access to justice and equal justice under law are such profound constitutional values in our heritage and history. Maier's book is a readable, sensitive, yet scholarly journey into the history and heart of American jurisprudence.

More recently, Professor Maier wrote, "The Strange History of ?All Men Are Created Equal.?" The article describes what the author learned by publishing her work, and receiving widespread reviews and making multiple public appearances. From them, she learned and found relevant

? the ways Americans think about the nation's revolutionary origin, and, more exactly, the Declaration of Independence, and also the Constitution and the Bill of Rights, which are the most enduring statements of the revolution's heritage ? Most Americans are aware that interpretations of the Constitution have changed over time, perhaps because Supreme Court decisions are so often in the news. However, they often do not extend that insight to the Declaration, which doesn't seem to have changed at all since 1776. The men who wrote and signed the document understood it, people assume, exactly as we do.

Maier notes that the language and purpose of the Gettysburg Address, and the post-Civil War amendments were to restate and update the principles and values of the Declaration. But, she states,

Clearly neither the "fundamental charters" of the United States on view in Washington or the American tradition of equality and rights were simple gifts from the eighteenth century. What they are today is the result of struggles to understand and apply their principles in circumstances unanticipated at the time of the revolution, often in the face of powerful opposition.

Myth, however, comes at a cost. By attributing to Jefferson and the Founders a knowledge of the future that they did not claim, we underplay the astounding achievements of those later generations who saved the Declaration of Independence from oblivion, made it into a quasi-legal Bill of Rights to compensate for the failure of the 18th Century to supply a more appropriate document, and then discovered a way to read its principles into the Constitution. We deny that the Declaration as we know it and, for that matter, the Bill of Rights are creations not of the founding generations alone, but of the American people over time. Could it be that the tendency to attribute superhuman foresight and other God-like powers to the nation's founders denigrates the capacity of later Americans to extend the Revolution's promise of freedom? Does it cast into doubt our ability, in adapting our institutions to unforeseen circumstances, to carry on the work of founding, which, as the Founder understood, must be a continuing act of creation? If so, the question is not so much whether we ?need? myths but whether we can afford them.

In Maier's words, there are those who "carry on the work of founding" and perform "a continuing act of creation." Unparalleled in that activity is Charles L. Black, Jr., an octogenarian whose entire life has been carrying the torch of constitutional values aloft and brilliant. Professor Black, in his late 80s, remains the Sterling Professor Emeritus at Yale Law School, and Adjunct Professor of Law at Columbia Law School. For most of the half-century he has been the intellectual conscience for those who continually strive for equal justice under law. In 1997, he wrote a brilliant, thin volume encapsulating scholarship and passion, A New Birth of Freedom: Human Rights, Named and Unnamed. It is a brilliant book, quotable and funny, intense and insightful, and easy to read. A short passage from its Preface states its message, but without the felicity of its writing, supporting reasoning, and the documentation and citation. He states:

This book puts forward the thesis that a sound and satisfying foundation for a general and fully national American law of human rights exists in three imperishable commitments ? the Declaration of Independence, the Ninth Amendment, and "the citizenship" "and privileges and immunities" clause of Section 1 of the Fourteenth Amendment (as those clauses ought to have been and still ought to be interpreted). These three commitments speak in solemn organic harmony. They ought at long last to be attended to as they stand ? for as they stand, in their harmony, they are all we have and all we need of prime authority for our building, by the methods of law, a never-to-be-finished edifice of human rights.

I write out of 50 years professional thought and work and feeling on and around these things. There is an enormous and many-sided literature ? from that half century and from long before. I had been concerned in this short book to state and to support, in my own voice, my own life's conclusions. I have drawn freely from my early writings, improving them when I can, but I think this book has its own new unity. I know that my chief debt, far outweighing all others, is to Abraham Lincoln, once one takes courage from his recognition of the primacy of the Declaration of Independence, the rest falls easily into place.

Those who have compassion for the poor and powerless, and who see access to justice jurisprudence, once it is understood, as the appropriate constitutional path to repair judicial passivity or even hostility, are national treasures. We should cast our eyes backward to those voices who have spoke eloquently through the years for fundamental values. Prominent among them has always been Professor Black. Much earlier, he wrote his "Further Reflections on the Constitutional Justice of Livelihood." He wrote "the derivation of a constitutional right to a decent material basis for life is from the Declaration, from the Preamble, and from certain parts of the Constitution proper. ? [They] are the most clearly indicated places for starting a search for those ?fundamental values."

That search must initially start with the Declaration's "life, liberty and the pursuit of Happiness." And while

many people do die, quickly sometimes, sometimes more slowly of poverty; poverty may be the leading cause of death. Liberty is very often made into a mocking simulacrum by poverty. But I would lay strongest stress on the phrase, "the pursuit of happiness." Can we the inheritors of the Declaration, of the treasure of its words, dare to treat these words as semantically blank, as mere burnished orotundity without reference?

Point by point, he demonstrated the applicability of the Preamble to the Constitution, he explained how these documents, along with the Ninth Amendment, are the primary expressions of the source of fundamental values, and without them the authenticity of constitutional values is meaningless.

Jurisprudence is ultimately implemented by the judicial process. But central to that process is the history involved. Thus, the legal historian not only is an active participant in defining our jurisprudence, but also affects the judicial process itself. Morton J. Horwitz, Charles Warren Professor of American Legal History at Harvard Law School, and reputedly America's most distinguished legal historian, is known best for his prize-winning The Transformation of American Law, 1780-1860, and The Transformation of American Law: The Crisis of Legal Orthodoxy, 1870-1960. His most recent publication, a small monograph, The Warren Court and the Pursuit of Justice, continues his American judicial studies to 1969. Direct application of Horwitz's legal history to our specific subject matter is found in his 115-page study of constitutional fundamentality. It was written as a Foreword to the Harvard Law School's Annual Review of the United States Supreme Court. It is entitled "The Constitution of Change: Legal Fundamentality without Fundamentalism." It discusses the intermix of politics and jurisprudence, and the constitutional choices the Court makes. Without the nuances of reasoning, historical progression, and detailed examination of important cases, the richness of the analysis cannot be restated by me, but in his conclusions, he summarizes his central thesis:

The central problem of modern constitutionalism is how to reconcile the idea of fundamental law with the modernist insight that meanings are fluid and historically changing. One path, constitutional originalism, simply refuses to accept the modernist insistence on the changing nature of constitutional meaning ? there is only one true meaning of a constitutional provision. Discretion of judges is thus thought automatically capable of being limited by determinate answers to constitutional questions derived from studying history and text. Originalism in constitutional theory is a form of legal fundamentalism that denies the legitimacy of changing constitutional meanings and thus resists any conception of a "living Constitution." Because originalism has been one of America's powerful forms of cultural legitimization, it has constantly threatened to bring constitutional change to a halt. Thus, one of the central issues of constitutional theory has been how to prevent constitutional law from becoming frozen; from ? in a word ? sliding from legal fundamentality into legal fundamentalism. ? This Foreword?s discussion of the history of "democracy" as a foundational concept in constitutional law presents glimpses of the potential motto for a theory of a changing constitution that is capable of combining classical ideas of fundamental law with modernist conception of dynamic change. Until this Court meets the challenge of fully developing and adopting such a conception, its political conservatism will continue to steer it to identifying fundamentality with unchanging constitutional principles.

Horwitz, in all of his writings, articulates a theory of dynamic fundamentality, a theory that acknowledges the existence of a "living Constitution" without abandoning the search for fundamental truth. In demonstrating the character of a changing constitution, he discussed Chief Justice Marshall's famous declaration in McCulloch v. Maryland, and then stated:

Amazingly, the Supreme Court cited this statement only once during the entire 19th Century, which suggests a deep resistance to any idea of a "living Constitution." Even by 1945, the Supreme Court had cited Chief Justice Marshall's passage only six times.

But early in the 20th Century, progressive jurisprudence again returned to the principle of a living, changing Constitution, as evidenced in Chambers v. Baltimore & O.R. Co. Woodrow Wilson, in 1908, at the height of his fame as a constitutional scholar, wrote that constitutional government "does not remain fixed in any unchanging form but grows with the growth and is altered with the change of the nation's needs and purposes." These views were developed by great jurists and scholars, notably Louis D. Brandeis and Benjamin Cardozo. Roscoe Pound broadened this jurisprudence with his distinction between "law and books," and "law and action." Both U.S. Supreme Court Chief Justices Charles Evans Hughes and Harlan Fiske Stone were strong proponents of this view.

Professor Horwitz brilliantly details this progressive conception of constitutional change, legal writings and judicial opinions.

There are many reasons to read Horwitz, not the least of which is his rich collection of footnotes, which create a fascinating bibliography on the issues. He richly describes the idea of a constitution as fundamental law, as one of America's most important contributions to civilization; noting the difference between small "c" constitutionality inherited from Britain to large "C" Constitutions and its effect on ideas of fundamentality. He also spells out issues of judicial discretion; and the focus on the underlying values of fundamental law. This led to reactive, traditional conservative emphasis on stare decisis. When that failed, originalism and textualism took its place. Also, "objective" or "neutral" principles were used to counter value judgments. Only in very recent years has the argument of democracy become a central legitimating theory, precluding courts from implementing fundamental values. Thus, judicial review and democracy were presented as opposing concepts.

Horwitz dissects the uses and abuses of the fallback on neutral principles, and the current Court's attachment to the abstract concept of "color-blindness" in recent race cases, as a manifestation of its desire for content neutrality. These abstractions supporting contested positions are designed to legitimate their views, but ultimately, the controversy must return to the underlying values of the proponents. And, in that arena, ATJ is necessarily triumphant.

There is an essential contradiction between fundamental rights and judicial passivity, whether from originalists, neutral principles, or a narrow, literal construction of the Federal Constitution. All these formulas result in narrow limitation on judicial action. They are a charter of negative rather than positive liberties. Those constructions deny that the first duty of government is protection, and when judicial duty arises in constitutional litigation, it is the duty of the judiciary to implement it. The Federal Constitution was a highly limited one as adopted in 1787, except for its Preamble, which states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This was, and is, a powerful commitment to affirmatively ensure those rights as the first duty of the government to afford protection to its citizens. Article IV, Section 4, also guaranteed "to every State in this Union a Republican Form of Government." But in the large, the federal Constitution was a housekeeping instrument, describing in minutiae the duties and powers of the three branches of the Federal system. The Constitution went out of its way to protect the slave trade (Art. 1 § 9). In the same section, it affirmed the privilege of the writ of habeas corpus except when there was trouble, and banned bills of attainder and ex post-facto laws. Under the judicial power, when the rare occasion would arise that there were federal crimes and except in cases of impeachment, a jury was provided (Art. III § 1). But this was not remarkable since the Founders correctly assumed that virtually all litigation would be in the states under state constitutions, and that the states would adopt bills of rights, as many of the original states had already done, to protect the rights of their citizens, whether in civil or criminal cases. Furthermore, the states had adopted the Common Law, and, in doing so, essentially adopted Common Law constitutionalism.

In September 1789, Congress sent to the states for ratification, a group of amendments, the first ten of which were ratified effectively on December 15, 1791. At the Constitutional Convention, there were proposals to add a bill of rights to the constitution, to quiet the fears of the people who had such bills of rights in their state constitutions. But even in a watered down version of the opening provisions of the Virginia Declaration of Rights, it was too frightening for a majority of the Congress and for certain slave states. The proposed assertions of universal human equality and rights for them were a recipe for trouble. The ultimate amendments Congress tacked to the end of the Constitution looked like, and were, an afterthought arising from these, and other political considerations. Yet the rights enunciated, particularly in the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments, reasserted basic rights already found in state constitutions, and whose values were widely supported because they were protections from Federal government tyranny. Perhaps the most important amendments were the Ninth and Tenth. The Ninth: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People," was an unenumerated rights clause which recognized that there were other important fundamental rights, referred to in the Declaration of Independence, in bills of rights of the states, and, most of all, from constitutionalism, which asserted Natural Law and Common Law rights, in their jurisprudence. The Tenth Amendment specifically stated that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

The post Civil War amendments clearly had as their purpose the abolition of slavery and involuntary servitude and a prohibition against denying or abridging the right to vote on account of race, color, or previous condition of servitude. But the Fourteenth Amendment, Section One's travails, are perhaps the most complex and troubling in American jurisprudence. By its legislative history, it was unquestionably designed to afford the right of government protection to the newly freed slaves in the Reconstruction period. It forbade the state to deny the equal protection of the law to any citizen, as well as reaffirming their other fundamental rights. Within a score of years, it was a dead letter ? ignored and evaded for half a century.

Steven J. Heyman, Professor of Law at Chicago-Kent College of Law, became irate at the decision of the United States Supreme Court in DeShaney v. Winnebago Cty. Dept. of Social Services, 489 U.S. 189 (1989). There, the Court ruled for Joshua DeShaney, a four-year-old child, beaten so severely by his father that he suffered massive brain damage, leaving him profoundly retarded and confined to an institution. After the defendant had been warned of a previous similar beating by the father, the county obtained custody of Joshua, yet it returned him to his father a few days later. For 15 months, the Department received constant reports indicating that Joshua was being seriously abused, and failed to take any further actions to protect him. The Supreme Court ruled that the Department's failure to protect Joshua did not violate the Federal Constitution. Chief Justice Rehnquist maintained that nothing in the Fourteenth Amendment required a state to protect its citizens from private rights violation. Rehnquist wrote, the Fourteenth Amendment "is phrased as a limitation" and "cannot fairly be extended to impose an affirmative obligation on the state" to protect these interests "against invasion by private actors." Heyman felt that DeShaney had critical implications for constitutional law and theory, not only in rejecting a constitutional right to protection, but by suggesting that the Constitution protects only negative liberty ? freedom from government oppression ? while imposing no positive obligations on government. In his article, "The First Duty of Government: Protection, Liberty and the Fourteenth Amendment," Heyman broadly surveys: the right to protection in the Anglo-American constitutional tradition; the origins of the right to protection; the Common Law traditions, and jurisprudential thought; Eighteenth Century constitutional theory; the right to protection in early American constitutionalism; legal meaning of protection jurisprudentially; enforcement of legal rights; and the meanings and applications of the Fourteenth Amendment. He spells out the need for a federal guarantee of the right to protection as an essential part of the Fourteenth Amendment's history and by their adoption of the Civil Rights Act in 1865. These provide for the right to protection under both the Civil Rights Act and the Fourteenth Amendment. It is a 52-page treatise, fully documented. His Conclusion summarizes his findings:

In DeShaney, the Supreme Court held that states have no constitutional duty to protect their citizens against private violence. In this article, I have sought to challenge DeShaney on its own terms ? the original understanding of the Fourteenth Amendment ? The right to protection was a central doctrine of American constitutionalism prior to the Civil War. This doctrine, rooted in the common law tradition and social contract theory held that the most basic obligation of government was to protect individuals against violence. The right to protection was not merely a matter of constitutional theory, but had concrete legal meaning. Under the original Constitution, the responsibility for protecting life, liberty and property was left largely to the states ? [After the Civil War] the Republic secured the adoption of the Civil Rights Acts of 1866 and the Fourteenth Amendment. A central purpose of both measures was to incorporate the right to protection into the Federal Constitution and thereby to empower the national government to compel the states to fulfill their duty of protection. Protection was one of the most basic rights of citizenship secured by the Privileges or Immunities Clause. It was also implicit in the Due Process Clause, which in the classical tradition was identified with the right to protection of the law. Finally, the Equal Protection Clause mandated that protection be afforded equally to all the citizens of a state. In accord with the classical tradition, the Framers understood protection to include not only the right to a civil remedy and to protection under the civil law, but also the state's responsibility to prevent violence. In short the reasoning at the core of DeShaney is indefensible. Far from showing that the Fourteenth Amendment was intended to prevent only the "affirmative abuse of power," the Congressional debates show that imposing a constitutional duty on the states to protect the fundamental rights of their citizens was a principal object of the Amendment.

Certainly since Marbury v. Madison, it has been clear that Heyman's thesis is historically and jurisprudentially indisputable and that the DeShaney opinion, language and reasoning has been indefensible for almost 200 years. In Appendix D, "The Duty of the Judiciary to Ensure Access to Justice," Chief Justice John Marshall effectively constitutionalized judicial review, the meaning of separation of power, and the essential structure of fundamental rights and judicial duties:

It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded?. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of his laws, whenever he receives an injury. One of the first duties of government is to afford that protection.

Heyman's article appeared in 1991. On May 20, 1996, the Supreme Court, in an opinion by Justice Kennedy, decided Romer v. Evans. Colorado municipalities had passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions. Colorado voters adopted by state-wide referendum an amendment to the state constitution which precluded all legislative, executive or judicial activity at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian, or bisexual orientation, conduct, practice or relationships." A constitutional challenge ensued. The Colorado Supreme Court enjoined enforcement of the referendum (that required the constitutional amendment) based on its being unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court affirmed the Colorado decision. Justice Kennedy in delivering the opinion stated:

Central both to the idea of the rule of law and to our own constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Respect for this principle explains why laws singling out a certain class of citizen for disfavored legal status or general hardship are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others, to seek aid from the government, is itself a denial of equal protection of the laws in the most literal sense. "A guarantee of equal protection of the laws is a pledge of the protection of equal laws."

In pondering over the concept of "neutral principles," I wondered when and why a word such as "neutral" could find its way into discussions of the judicial process. Its primary definition is "not taking sides in a quarrel." Thus, it would be an acceptable usage for a judge at the trial level. But, of course, the usual and appropriate word is "impartial," that is, "not favoring one party or another." At an appellate court, or in the face of constitutional questions, judges have sworn to uphold and implement the constitution, not to be neutral toward it. Indeed, the derivations of the word, including its form "neuter," which among other things refers to a castrated animal, is a strange one to use. If one substituted "impartial" for "neutral," it would be appropriate in fact-based cases where clearly judges must be impartial. And if the word "equal" is utilized in constitutional case, we will find that constitutionally the only term used is "equal justice," not "neutral justice." As "neutral" is passive, its logical consequence is to neuter government action and judicial responsibility to implement constitutional values. The consequence of that terminology directly results in leaving private corporate power holding sway.

In further searching, I found a fascinating law review article, "Neutral Principles and the Right to Neutral Access to the Courts." The thrust of the comment is that the right to access to justice requires that indigents be provided with legal services in civil proceedings. The Introduction and Conclusion of this review are short enough to quote, but its text with its footnotes is helpful and interesting despite its utilization of "neutral principles" language.

This Comment takes a conservative constitutional theory and argues for what some would consider to be a very liberal proposition: a right of access to the court for all citizens regardless of ability to pay. At first blush, it might seem absurd to suggest that a right to court access irrespective of economic status is consistent with the original intent of the framers of the constitution. However, the idea that justice should not be rationed on the basis of ability to pay is not a new one, as a quotation from the Magna Carta, Ch. 40, illustrates. Robert Bork's theory of original understanding has been attacked as producing a rigid and mechanical jurisprudence ? Examination of Bork's theory, however, reveals that it does not necessarily favor either conservative or liberal thought, nor does it produce simply rigid legal doctrine, frozen in the late 1700s. According to Bork, evolving legal doctrine does not unsettle the originalist. In fact, it is both desirable and inevitable. The role of the originalist judge is "to discern how the framers? values, defined in the context of the world they knew, apply to the world we know."

The Conclusion states:

As Bork emphasizes, "judges must never hesitate to apply old values to new circumstances, whether those circumstances spring from changes in technology or changes in the impact of traditional common law actions." Considering the change in our judicial system over the last 200 years, the recognition of an indigent's right to legal services is a legitimate and logical evolution of the neutral access principle. The judge's duty in the context of an indigent's access to the court, is to ensure that the neutral access principle established by the framers, is "made effective in today's altered world." Given today's judicial system, application of that principle should require the recognition of an indigent's right to legal services. Only then can the Court hope to retain its legitimacy before the more vulnerable citizens of our country. Only then can the Court protect the powers and freedoms the framers sought to guarantee to all citizens regardless of their economic status in society.

The Comment correctly represented Bork's view as recently as 1990. In his book, The Tempting of America: The Political Seduction of the Law, Bork discussed his views with respect to New York Times v. Sullivan and Brown v. Board of Education, among others, as

? examples of the Court applying an old principle according to a new understanding of a social situation. It is not that a court may apply an old principle in new ways because its or the society's views on race have changed, but, because it became evident over time that the racial separation the ratifiers of the 14th Amendment assumed was completely inconsistent with the equal protection of the laws they mandated. The important thing, the ultimate consideration, is the constitutional freedom that is given into the judge's keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair, and reasonable meaning fails in his judicial duty. That duty, it is worth repeating, is to ensure that the power and freedoms the Founders specified are made effective in today's altered world. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint.

Bork and Black were colleagues at Yale Law School, and familiar with each others? jurisprudential views. In 1990, at least, they both saw the past as illuminating the value of the present, and that recognition of societal change was essential for a living constitutionalism.

Professor Black had been urging his constitutional principles which were fully articulated in his 1997 book, A New Birth of Freedom, well before his "Constitutional Justice of Livelihood" article of October 1986. He was the articulate spokesman of this rights jurisprudence for more than a third of the 20th Century. But neither before, nor since, has his thinking been surpassed.

That is not to say that excellent legal scholars and committed constitutionalists have not given attention to the basic unfairness of poverty and its incompatibility in a country ostensibly committed to equal justice under law. As early as 1969, Frank I. Michelman, Professor of Law at Harvard, in the Foreword of the Annual Supreme Court Review of the 1968 Term, wrote: "Foreword: On Protecting the Poor through the Fourteenth Amendment." Michelman carefully reviewed poverty law and Supreme Court case law on access to justice to that time, and cited other earlier discussions. But he based his reasoning on 14th Amendment Supreme Court development, concluding that, "The equal protection clause is a constitutional text which most naturally suggests itself to one who would claim a legal right to have certain wants satisfied out of the public treasury." In 1973, he wrote again, "In Pursuit of Constitutional Welfare Rights: One View of Rawls? Theory of Justice." His discussion was high-minded and almost abstract, somewhat like the brilliant classic, "A Theory of Justice" by his colleague John Rawls.

Rawls is James B. Conant University Professor Emeritus at Harvard University. He was the winner of the 1999 National Humanities Medal awarded by the President of the United States. The award recited, "John Rawls is one of the most influential political philosophers of the 20th Century." He is seen as America's most respected moral philosopher. His influence as a teacher, in legal theory, is unsurpassed. But neither Michelman nor Rawls developed a constitutional strategy. They relied primarily on moral suasion and philosophy.

Professor Peter B. Edelman, Professor of Law at Georgetown University Law Center, and a major participant in government and politics for more than 30 years, has spent much of his professional life concerned with poverty and social welfare. His 1987 essay, "The Next Century of Our Constitution: Rethinking Our Duty to the Poor," considered anew the existence of a constitutional right to some form of minimum income. He suggested that "perhaps it will soon be timely for litigators to bring a survival-income lawsuit under the state constitution in a jurisdiction which has an especially aggressive court, particularly if that court has already responded favorably to education litigation premised in part on the idea that education is fundamental to survive. This state constitutional approach may be the most powerful litigation tool to implement and make real, fundamental right to ATJ. Edelman also considered state constitutional litigation to protect the rights to shelter for the homeless. His thinking impelled him to assert that there is a fundamental right involved.

Somewhat later, Professor Curtis Berger of Columbia University School of Law wrote about a long-time concern of his which was the right of habitation. In his 1990 article, "Beyond Homelessness: An Entitlement to Housing," he stated:

I propose that we guarantee to every American household a basic level of housing that meets current federal standards of quality and affordability. Affordable shelter must be seen as a fundamental right, as part of that entitlement to an adequate standard of living that every humane society ? certainly one as fortunate as our own ? should wish to assure every one of its residents. The phrase "fundamental right" has constitutional overtones, but I am not asserting the need for an entitlement of constitutional dimension. As a constitutional pragmatist, I accept the United States Supreme Court's view that the present Constitution contains no shelter protection. Further, I do not believe that either the reading of the text or the text itself will change within any time soon.

Berger was a friend and colleague of Black's. As he stated, he was also "a constitutional pragmatist" as well as an idealist. In 1990, with a Rehnquist Court firmly entrenched, frontal federal constitutional assaults would not be pragmatic, and indeed would most likely be counterproductive.

For a more recent update on these questions, see "Poverty, Democracy and Constitutional Law," by Stephen Loffredo. This 112-page survey is a helpful resource. Its footnotes constitute an excellent bibliography on the broad subject of the article's title. It is comprehensive and often extremely detailed in its analysis. It will require more than one reading. He appropriately criticized the ATJ jurisprudence of the Burger and Rehnquist Courts. He condemns the "myth of democratic legitimacy" and other rationalizations to dodge the judiciary's constitutional responsibility. And his fundamental rights values are clear. But he ends with "the modest hope" that government "will reorient social policies in a more humane and caring direction."

Also, in more recent times, Lawrence H. Tribe, the Tyler Professor of Constitutional Law at Harvard Law School, has written on these subjects. Tribe is often described as America's greatest constitutional litigator. He is a constitutional scholar whose influence and writings in American constitutional law is perhaps without contemporary parallel. In a memorial lecture for the late Justice Matthew Tobriner of the California Supreme Court, for whom Tribe had clerked, he spelled out a different vision of what courts should do, condemning the "court as calculator, which seeks less the vindication of justice than the budgeting of rights." He states that it seeks less equal justice under law than "efficient policy through bureaucratic rule." It is a "managerial vision of deference to authority and expertise couched in the technocratic garb of cost-benefit analysis" and "the pretended neutrality of a pseudo-scientific calculus." He then detailed "how this technocratic vision is coming to dominance in the Burger court, what it means for human rights, and for the judicial mission, and why I believe it should be criticized and combated as a profound perversion of the perspective from which any genuine constitutional court ought to view and help to shape the political and social world." This lecture, "Seven Deadly Sins of Straining the Constitution through a Pseuod-Scientific Sieve," is a pithy, whimsical, yet deadly, critique of judicial reactionary jurisprudence.

In Tribe's heralded book, Constitutional Choices, he explores, with scholarly depth, a proposition that the advocate and the orthodox may reject ? that there are choices. Some of the issues are discussed in this paper. Tribe has the knack of posing questions we have not thought about, and opening our minds to new ways of seeing old issues. Constitutional Choices is worth the effort.

Tribe, as a teacher, and Michael Dorf, a prize student of his, authored a slim, but extraordinarily useful book ? "On Reading the Constitution." The thesis is that there is no unitary or solitary formula for prying out the Constitution's meaning ? such as seeking the "original intent of the Framers" ? and they instead propose techniques drawing upon the traditions of the Common Law, so that decisions conform to central values of constitutional principles.

There is a vast literature, in books, law review articles, and every form of media, about the Supreme Court, and its divided jurisprudence. It can be found on TV and radio talk shows, in magazines and periodicals, political and scholarly, and certainly in newspaper columns and editorials. Most of all, its sources come from the Court's opinions themselves, which often, in their candor, highlight and make dramatic the chasm separating two visions of justice, as it was categorized by Professor Frank Askin of Rutgers Law School, and a long-time general counsel of the ACLU. In his article, "Two Visions of Justice: Federal Courts at a Crossroad," Askin's focus was on Missouri v. Jenkins. In Jenkins, a slim majority of the Court struck down orders approved by lower federal courts which required a Kansas City school district to take specific remedial action in response to a long-standing desegregation order. Justice Thomas, in his Opinion, concentrated his criticism on the exercise of the "remedial" power of courts of equity to provide effective remedies for the enforcement of legal rights. In doing so, he condemned equitable relief, called for "judicial restraint," and essentially demonized what he termed "judicial activism." Askin wrote that, Thomas, in his concurring opinion, "openly challenged the underlying rationale of the historic Brown v. Board of Education school desegregation decision. Thomas also alleged that the Supreme Court began a trend in the mid-1950s toward a vast usurpation of legislative power in an effort to enforce constitutional rights."

For the full flavor of the Askin critique, one must read the decision, and Askin's comments, which appear to me to be well-documented. Askin sees Thomas's decision as articulating "a broad and sweeping rationale not only for the outcome in Jenkins, but also for a number of other decisions in recent years in which a conservative majority of the Court has sharply curtailed the authority of federal courts to shape remedies which could effectively ameliorate constitutional violations. Justice Thomas's opinion in Jenkins enunciates a flawed doctrine which he, and the radical right for which he speaks, would impose upon our constitutional jurisprudence.

Professor Askin acknowledges that the Supreme Court, beginning in the mid-1950s, "brought about significant changes in America's social structure," and states that "Justice Thomas obviously views these developments as a perversion of our constitutional system and a violation of the doctrines of separation of powers and states' rights." Askin responds to that view, and to Justice Thomas's reliance on the Federalist Papers, and the writings of Alexander Hamilton. By using these sources himself, he notes that Justice Thomas "writes as though constitutional history ended in 1789 and the constitutional revolution of 1865 never occurred." He states:

Additionally, the separation of powers so nostalgically yearned for by Justice Thomas, appears to be nothing more than the power of the legislative and executive branches to ignore the constitutionally conferred rights of individuals. The law of this country has clearly been otherwise since Marbury v. Madison. That landmark decision requires the judicial branch to assure that the other branches of government adhere to constitutional restraints in their exercise of power.

Askin does not add that Chief Justice Marshall used equity powers (granted to the Court constitutionally) in Marbury, but he does detail that federal equity judges shape constitutional remedies that work, and have done so for almost 200 years. Askin states:

Justice Thomas has thrown down the gauntlet and in so doing has exposed the legal agenda of the radical right, namely, a program apparently intended to insulate bureaucrats from judicial interference with unconstitutional programs and policies? With federal courts at an historic crossroads, it is important not only that judges and lawyers, but also the citizenry at large, understand the dangers inherent in Justice Thomas's view. One must ask whether the federal courts will become bastions of power and privilege.

In the five years following Askin's article, there have been innumerable articles, and comments from both sides of these issues ? some simplistic, facile, unscholarly and political; others serious, scholarly, and troubled. Most have conceded that the malaise that has eroded the executive and legislative branches, has caused the legitimacy of political democracy to be seriously damaged by its purchase. They now fear that it is rapidly, and contagiously affecting the judiciary as well. Consequently, the two most vibrant legal movements in America today are the access to justice movement, and the thriving judicial independence movement. Both of these have as their core values meaningful equal justice under law. This is realizable, if we recognize the massive changes in our society, and the recognition of the transfer of power from the people to corporate power, by their purchase of the electoral process, the means of communication, legislatures, and executives, and now erosion of the integrity of the courts.

But it also must be realized that the United States Supreme Court, and its members collectively and individually, are far more complicated than a simple division of "which side are you on." A careful reading of the Supreme Court's 1999-2000 Term opinions does not support a solidly stratified view of a right-wing of Rehnquist/Scalia/Thomas; a liberal wing of Souter/Stevens and Ginsburg; and a swing vote of O'Connor, Kennedy and Breyer. Certainly there is some predictability in specific cases where past performances give clear clues about decision-making. But the last Term was wildly schizophrenic jurisprudentially. There were opinions where the "activist" judges were of the right, while strict reliance on precedents was mixed. One might think that some Justices had revisited the classical primer of Justice Cardozo on The Nature of the Judicial Process. We must wait for another time to review the last Term. Our questions about the future can be answered only if we can fathom what the character of our jurisprudence concerning access to justice will be in the years ahead. That is not likely. We continue, however, to look for clues.

One last example of the difficulty of understanding the future from the judicial present can be found in the Washington State grandparents? rights case, Troxel v. Granville, decided on June 5, 2000, by the Court. A Washington statute permits grandparents to petition for visitation rights when a court determines that it may serve the child's best interests. The Troxels petitioned for the right to visit their deceased son's daughter. Granville, the girl's mother, objected to the amount of visitation sought by the grandparents. The trial court ruled for the grandparents under Washington law. Granville ultimately found herself in the United States Supreme Court urging that the state statute unconstitutionally infringed on the parents' fundamental right to rear their children. Justice O'Connor, for the Court, joined by Chief Justice Rehnquist, Justices Ginsburg and Breyer, agreed that this violated her due process right to make decisions concerning the care, custody and control of her daughter. Justices Souter and Thomas filed opinions concurring in the judgment. Justices Stevens, Scalia, and Kennedy filed dissenting opinions. Justice Scalia in his short dissent, stated:

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents? authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right. ?

If we embrace this unenumerated right, I think it obvious ? that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.

Read all of Troxel v. Granville carefully. How would you have voted? Then try to predict what the Supreme Court might do in determining ATJ jurisprudence in the new century.

As we enter the new century and millennium, the jurisprudential struggle is also an ideological and political one. Its primary focus is on the United States Supreme Court ? whose nine members and their ages and views are debated and dissected by pundits and court watchers. The 2000 election is seen as critical for the jurisprudence of the 21st Century. To a lesser extent, the struggle for control of state supreme courts revolve around jurisprudence, but even more sharply and nakedly, turns on political power and maintenance of privilege. In high stake state judicial elections, judicial independence is the victim, and the legitimacy of the judiciary becomes a sham. As we look to the future, the jurisprudence of access to justice may find its refuge in the state courts, but with variability state by state. Yet, for most of us, our focus still turns to the U.S. Supreme Court. Nationwide media centers on the Court, and our vision of justice is shaped by their decisions, and their conflicts.

The future begins tomorrow and the past was yesterday.

Predictions of the future are beyond my competence. I have little skill with, and no understanding of, the rapidly changing technology. The Cybernetic Revolution is therefore beyond my competence, just as the Industrial Revolution would have been if I would have tried to understand its new machinery. I would probably have been a Luddite. But history tells me, that technological change changes life, relationships, values, and thus law and jurisprudence. Predictions of so-called experts are dramatically different as to what the character of those changes will be for human rights and social and political structures. Globalization has proven to be a broad, continuing social phenomena that is apparent, observable, and certain. The rapidity of its growth, and its consequences, are speculative, but subject to logical conjectures, by what we have learned from its phenomenal growth in the last decade of the 20th Century.

When speaking of "Diversity," we mean to factor in issues of increased social and legal consciousness. After all, there has always been diversity ? there have always been men and women, old and young, black and white, healthy and disabled, and the broad variable spectrum in between each of these categories, e.g., religion, sexuality, indigenous people, et al. "Diversity" is the word we have come to use in relatively recent years for the increasing respect for the human dignity and rights for ALL people, and their jurisprudential equality.

Those, whose racism, sexism, homophobia, bigotry, or hate and contempt for others not like them, characterize "Diversity" as "special interests" seeking privileges and entitlements. But the world-wide rising of expectations of justice, dignity and legal equality has led to a rise of consciousness for those with power, and even the apathetic. It has made many of us conscious of our own racism, sexism, and stereotyping, an unconscious product of our societally dominant social attitudes. It has been difficult for me to face how deeply rooted those feelings existed in my buried consciousness, although not in my intellectual values. I believe that the acceleration of this profound change in consciousness has accelerated massively in the closing years of the 20th Century, not only in the United States but in other parts of the world as well. Yet it is clear that there still remains virulent activist religious fundamentalism in some countries of the world, killing those who do not believe as they do. Virulent nationalism and the hatred it engenders have led to unconscionable crimes against humanity within the past decade. Yet in balance I believe that the changes are positive and that evolutionary progress will continue two steps forward, one step back, in the new century.

Only in the future will we know whether the coming of a new century was transitional. But we have taken Celebration 2000 as a time to question whether the access to justice movement in the new century will change in the years ahead, and what the character of those changes might be. Others have sought to answer those questions. Ved P. Nanda, the Thomas G. Marsh Professor of Law and Director of International Legal Studies Program at the University of Denver, was the U.S. Reporter in 1998 XVth International Congress of Comparative Law. As a part of the deliberations on "American Law at the End of the 20th Century," he presented "Access to Justice in the United States" to the Congress. Nanda's paper is wide-ranging in his description of ATJ in the United States at the end of the century.

Justice is seen as a "fundamental right." But what is justice and how does the American legal system provide for proper access to it? Is there meaningful access for all? What are the impediments in obtaining justice? The answers to these questions tend to vary with one's political leanings, economic status, and attitude toward the role of government and the legal system.

Nanda explained that to understand the concept of access to justice, a definition of "justice" is required. "The debate over what is justice goes back thousands of years." From Socrates to the present, the debate continues, "and is complicated by the fact that the U.S. Constitution does not define the term ?justice.?" Nanda sees the Preamble to the Constitution as a primary source for the definition and quotes Justice Stevens in his article, "Is Justice Irrelevant" that the Preamble connotes an abstract "justice-like ? domestic tranquility idea," separate from a function of government machinery but as an overriding theme of fairness. Nanda questions:

Yet, does this overriding theme settle the debate? ? While the American legal system considers reimbursement and repayment for injuries to be cornerstones of its structure, there exist many hurdles that often must be overcome. Sovereign immunity, the time-tested concept that the king (or state) can do no wrong, often prevents injured parties from recovering, solely based on the fact that the wrongdoer was a governmental entity? The notion that government may act without legal consequences seems to lend credence to Thrasymachus? view that those with the power will dictate the concept of justice.

He notes that statutes of limitation prevent compensation for harm suffered, favoring the efficient resolution of disputes more than the principles of liability and equity. He decries the concepts of equal protection under the law and due process of the law being utilized to deter remedies for those discriminated against, or powerless. He sees due process as a term "that refers more to procedure than substance." He concludes that:

The American legal system balances the overarching theme of fair play, this "domestic tranquility" mentioned in the Constitution's Preamble, against the desire for an efficient system ? a system that allows a sovereign to act without accountability for consequences.

Having described the multi-layered Federal and state judicial system, criminal, civil and administrative, he concludes that, "Though the American judicial system contains a plethora of venues to air disputes, and all of its legal fora share certain consistent underpinnings of due process, it also permits of inequities based upon economic resources and geography."

He concluded that sovereign immunity, and explicitly the Eleventh Amendment to the United States Constitution, as it has been applied, are significant impediments to ATJ. Both the due process and equal protection principles in the Fourteenth Amendment have been given constructions hostile to their intent and purpose. But despite this, he found some hope in the Supreme Court's decision in Romer v. Evans.

Nanda's survey of ATJ included the civil justice system, domestic law cases, deportation and exclusion proceedings, criminal prosecutions, administration of the death penalty, the right to counsel and racial discrimination. In each area, serious impediments of ATJ were described. He also reported on issues discussed at our earlier ATJ Annual Conference Workshops, and by the ATJ Board's Jurisprudence and Impediments Committees, including the issues of a Civil Gideon. In his final comments, he identified a further issue, "which lies at the heart of justice and the access to justice" ? complicated court structures and procedures leading to congestion, delay and underfunding. But his conclusion was:

However, many of the drawbacks of the American legal system, and its functioning, as analyzed by one closely associated with the American legal profession, are seen through a magnifying glass with perfection as the goal, shortcomings can be seen as signposts for future growth.

The Report, although generally critical of American ATJ jurisprudence, concluded with faint optimism for the future. It did not discuss other end-of-century major issues that dramatically affect vitality of access to justice in the future. One of the most important is the massive menace of the privatization of law. This has many aspects, but its most menacing quality is that it seeks the emasculation or even destruction of the civil justice system, precisely because it still remains an access point for the poor and powerless to find a remedy and determination of their rights by the American jury. Instead, alternative dispute resolution (ADR) increasingly seeks to be transferred to purchasable private arbiters, often without subsequent open justice system reviews. This phenomena is so varied, widespread and complex in its approaches, implications, and methods, that it can only be discussed in other venues where extensive analysis can be presented. Mandatory arbitrations may well be the greatest impediment to ATJ in the 21st Century. This is particularly true when it is a condition of private adhesive contracts of employment, purchases, services, and relationships to consumers, employees, and others who are unable to give meaningful informed consent to the loss of their rights to access the justice system.

The ADR movement generally also has perils, as well as the prospect of some benefits of speed and economy, if there is meaningful informed consent and legal representation. The complete substitution of private judges, totally out of the justice system, who are purchased for dispute resolution is another phenomena of concern. Often it is a symptom of the increasing underfunding, under-prioritizing, lack of respect for the values of a strong and vibrant judicial system. Any trend that diminishes the respect for fairness, power, and dignity of public justice and substitutes private contracts and commerce for it will inevitably destroy meaningful access to justice for the poor and powerless.

These end-of-century trends, when combined with the strange oxymoron of "Law and Economics" doctrines, are increasingly insidious. The tools of economics, or sociology, or science, are often indispensable in the process of fact-finding. They can illuminate the reasoning of appellate judges and give texture to the issues before them, but they are misplaced in the search for the values inherent in constitutionalism. This is particularly true when Law and Economics proponents seek to inject policy issues such as claims of efficiency, cost, or insurance suggesting that they are relevant to access to justice, fundamental rights, or the values of constitutionalism. Proponents of Law and Economics seek to replace the rule of the market, rather than rule of law. Certainly, capitalism was not the source of fundamental rights of life, liberty and the pursuit of happiness. These values preceded the rise of capitalism, and hopefully will survive monopoly capitalism in its globalization reach.

Other end-of-century trends that can materially affect ATJ in the 21st Century are the rapidly changing character and perception of political democracy. In America, the principle that sovereignty is in the people is nobly expressed in the Declaration of Independence, reaffirmed in the Preamble to the Constitution, and hallowed in the immortal words of Abraham Lincoln in the Gettysburg Address, when he spoke of "a new birth of freedom ? and that government of the people, by the people, and for the people shall not perish from the earth." This stirring constitutional value led to growing populism in the post-Civil War period, and culminated in the adoption of initiative and referendum state constitutional provisions, as an implementation of the right of the people to assert their sovereignty. These measures coupled with universal suffrage, stemming from the 15th Amendment (race, color, servitude), the 19th Amendment (women), the 24th Amendment (poll tax), and the 26th Amendment (youth), constitutionally protected and implemented the sovereign rights of the people in a representative democracy. From the ratification of the 13th Amendment in 1865, to the ratification of the 26th Amendment in 1971, more than a century had passed. But today, political democracy and the sovereignty of the people is an illusion. Only small numbers of our citizens vote. The choices presented to them are largely chimerical. Corporate America and the rich and powerful control the communications and finance the candidates. Even the growing unanimity of belief that electoral reform is necessary does not face the reality that the massive disparity of wealth and power is the overwhelming barrier to our most fundamental democratic value ? a sovereign people.

The same factors are present in the initiative ? referendum issue, according to David S. Broder, a prominent journalist, columnist, and political scholar, in his new book, Democracy Derailed: Initiative Campaigns and the Power of Money. In his Introduction, "A Republic Subverted," Broder stated:

At the start of a new century ? and millennium ? a new form of government is spreading in the United States. It is alien to the spirit of the Constitution and its careful system of checks and balances. Though derived from a reform favored by Populists and Progressives as a cure for special interest influence, this method of law-making has become the favored tool of millionaires and interest groups that use their wealth to achieve their own policy goals ? a lucrative business for a new set of political entrepreneurs. Exploiting the public's disdain for politics and distrust of politicians, it is now the most uncontrolled and unexamined arena of power politics. It has given the United States something that seems unthinkable ? not a government of laws, but laws without government. The initiative process, an import now just over 100 years old, threatens to challenge or even subvert the American system of government in the next few decades.

The constitutionality of initiatives have been scrutinized, just as legislative actions are, when they are found to be violative of fundamental rights. The "democracy" rationale that seeks to bar judicial review is that the legislature represents the electorate and thus expresses democratic will. In the initiative process, the people directly determine their will by voting. But from the beginning of this country, there has always been deep concern about majoritarianism and its decisional primacy. And for most of our jurisprudential history, if the right involved was fundamental, it necessarily trumped a majority vote, whether it was direct or representative. Nonetheless, since Marbury v. Madison, ultimate judicial review has been innate in the separation of power doctrine. The battle between judicial protection of fundamental rights and all power in the sovereign people remains a contention which will not go away, particularly when the powerful proponents of privilege disguise their goals by wrapping themselves in the cloak of democratic ideology.

In the early 1960s, I had the privilege of working on a California initiative and referendum which led to a constitutional amendment barring application of California's open housing law, which barred racial discrimination in the housing market. The United States Supreme Court in Reitman v. Mulkey,upheld the California Supreme Court's decision that the initiative was unconstitutional. Charles S. Black, in his "Foreword, ?State Action,? Equal Protection And California's Proposition 14," written for the review of the United States Supreme Court's 1966 Term, is an interesting discussion of major issues presently facing us, but which have been greatly exacerbated and intensified by the enormous rash of initiative and referendum activity at the close of the century, and the enormous sums of money spent to confuse and buy the vote.The jurisprudential question involved in these competing constitutional views will be further explored and hopefully understood in terms of the jurisprudence of equal justice under law.

In the meantime, the reader may wish to read Washington v. Seattle School Dist. No. 1. There, the Seattle School District had enacted a plan for desegregation of its schools using mandatory busing. A state-wide initiative terminated the use of mandatory busing for purposes of racial integration. The Supreme Court held that the initiative violated the Equal Protection Clause. In a 5-to-4 decision, Justice Blackmun was joined in the majority by Justices Brennan, White, Marshall and Stevens. Justice Powell was joined by Justices Berger, Rehnquist and O'Connor. Also of interest is an excellent law review, "When Initiative Law-Making Is Not ?Republican Government?: The Campaign Against Homosexuality" by Hans A. Linde, then senior judge of the Oregon Supreme Court and Visiting Professor of Law and Public Policy at Willamette University.

During the 1999-2000 Term of the United States Supreme Court, the Court wrestled with complex constitutional questions relating to globalization and states' rights. Intuitively, one would think that proponents of states' rights over federal power would have even more objection to globalization. Since World War I, at least, strong political proponents of small government and less government have opposed not only the growth of federal power, but strongly opposed internationalism, international human rights, and international commitments. But assumptions that the political views described would be implemented by judicial judgments have not been validated by recent Court decisions. According to a Report from Pietro S. Nivola, a Senior Fellow in the Government Study program at the Brookings Institute. In "Last Rites for States' Rights?" Nivola begins by calling attention to Congressional actions intending to curtail federal authorities from imposing unfunded mandates on state and local governments. Likewise, the Supreme Court, through the last decade, has handed down decisions that sought to reaffirm the sovereignty or prerogatives of the states. "These developments appear to signal a fundamental change in American federalism, sharply shifting the balance of power away from the central government to the states." Nivola's paper, however, questions the extent of that shift. Centralization, he argues, has been the prevailing trend since the end of World War II, "as federal policies have continued to preempt, through a variety of methods, a widening range of state and local responsibilities," relying on the supremacy clause of the Constitution (Art. VI).

Despite the introduction by Republican Senator Fred T. Thompson of a Federalism Accountability Act, to curb a profusion of preemptions, Nivola questions that this is unlikely to affect preemptive actions like (1) prohibitions on state and local government exercising particular powers; (2) federal laws or regulations that replace state and local ones; or (3) requirements that state and local authorities satisfy certain standards. Despite the fact that preemption narrows local autonomy and is claimed to result in "unprecedented usurpations of traditional state authority," the federal reach has widened to preempt "state laws affecting trade, telecommunications, financial services, electronic commerce, and other issues." Nivola argues, that despite the expanding centralism during the last half of this century, both Congress and the Courts, have created "inexplicable anomalies" in terms of logic and principles. He cites a series of Supreme Court decisions in the past fifteen years, and states, "If judicial rulings on dual sovereignty often appear to lack consistency, the determination of lawmakers and presidents can be downright fickle."

Republican majorities in Congress proclaimed a commitment to devolution, but they preempted state duties, giving the federal government the power to enforce child support laws, eligibility standards, public assistance, and other traditional state roles. Federal preemption statutes have skyrocketed in recent years. Neither the Reagan or Bush administrations slowed the surge of what came to be called "coercive federalism." Nivola notes that these rapid recent increases resulted from the undeniable need for national environmental protection, and the recognition that the world economy has become globally integrated. Thus, the national economic prosperity rests on the ability of American corporations to compete efficiently in global markets and to be able to standardize rules of international character, to implement free flow of trade and increased profit for American corporations, investments, and financial capital. Even more interesting to Nivola is the perceived necessity of federal pro-competitive regulatory reform to aid U.S. industries who have realized that national regulatory uniformity is far more predictable and profitable than the chaos of state regulation. Finally, the break-neck pace of change in world telecommunications and information technology forces preemption of local policies.

In recent years, the GOP-controlled Congress "has been busy federalizing yet another field in which the states used to have primary responsibility, namely, controlling crime." Nivola startlingly states that, "During these decades, Republicans have repeatedly paid lip service to decentralization. Yet, a recent systematic study of roll calls in the 98th through the 101st Congresses found the Republicans actually more prone than the Democrats to preempt state and local regulations." His conclusions are that it is highly unlikely that this trend will be halted in the new century, because, "the operative constitutional restraints on federal aggrandizement seem minimal." He notes that the handful of recent verdicts that might restore some limits have been decided by the slimmest of margins. "These cases include United States v. Lopez, 1995; Seminole Tribe of Florida v. Florida, 1996; Alden v. Maine, 1999; Kimel v. Florida Board of Regents, 2000; and United States v. Morrison, 2000."

The second basis for his conclusion is that economic and technological changes will continue to support reasonable justifications for supplanting local with national, or even international, standards. Third, "powerful corporate lobbies will apply great pressures to secure uniformity." Fourth, both political parties are responsive to corporate centralist goals. Although Republicans profess to defend states' rights, "when championing them frustrates business interests, or softens the GOP's ?tough on crime? image, or makes the party appear insensitive to someone's ?rights,? enthusiasm for state prerogatives recedes." Nivola sees little to believe that this will change. The nationalization and globalization of media; and the skyrocketing cost of campaign finance "intensify political temptations to nationalize, or preempt, public policy in the American federal system."

The Report is lengthy, and documents a basis for predicting the likelihood of 21st Century trends. It does not contain the historic justification for Federalism, nor of jurisprudence that was a factor in the Jeffersonian mind. Inexplicably, it also did not call attention to two remarkable U.S. Supreme Court, federal preemption decisions, both decided on June 19, 2000; both of which were unanimous; both of which involved international commerce, and the interests of international oil companies; and both of which struck down state protections of basic rights. They were U.S. v. Locke, Governor of Washington, and Crosby, Secretary of Administration & Finance of Massachusetts v. National Foreign Trade Council. The issues involved in both cases bear directly upon our theme questions. Symbolically, the cases ushered in the 21st Century. Practically, they reinforced the view that globalization of world trade is incompatible, if not inimical to the values of human rights, and the fundamentality of ATJ. The protests against WTO were in substantial part fueled by that concern. These cases, and their implications for the new century, are too complex to detail here, but are an essential factor in the inextricable intertwining of the incompatibility of international corporate power and international human rights and ATJ.

"The New Federalism" is a Report of the Committee on Federal Legislation of the Association of the Bar of the City of New York. Its 48 pages, in the large are analyses of the dozens of Supreme Court cases on this subject in recent years, many with quotations from the decisions. It is a welcome resource on this question. Its introduction states:

Since the 1994-95 Supreme Court Term, the Court has held twenty separate federal laws unconstitutional. This rate is unprecedented in our history. The Supreme Court has nullified a total of 150 acts of Congress on constitutional grounds since Marbury v. Madison (1803), an average of slightly less than one act per year. The recent trend of striking down an average of four statutes each year is exceptional and deserves the attention of the legal profession and other branches of government. In annulling these federal laws, the Court has applied new standards for examining legislation passed by Congress.

Its conclusion is:

The States' concern about restrictions being placed on them by Congressional legislation can better be determined in the political arena, where the states have ample power to express and defend their positions, rather than by federal court decision. The New Federalism presents an unnecessary barrier to the already difficult process of enacting legislation on a national scale.

Neither the Brookings Report nor that of the Association of the Bar of NYC describe the Rehnquist Court as an "activist" one, even though it struck down more statutes of the federal government and invalidated more state statutes by the use of preemption in recent years, than any Court in history. But in the "ACLU Final Report on 1999-2000 Supreme Court Decisions," its National Legal Director stated:

In pursuit of what remains a largely conservative agenda, this has become one of the most activist Courts in American history. A majority of the Court was appointed by Presidents who claimed to be looking for judges who would enforce law, not make law.

The decisions of the Supreme Court are of great interest to many and the 1999-2000 term has produced an avalanche of commentaries. It is beyond our scope or power to make still another analysis here, but the significance of a Term spanning two centuries in one year, if understood, might help us answer the questions raised about the future by this paper. They tell us much as to the jurisprudential opinions of the sitting justices. There is no issue discussed above that was not touched upon by this Term's opinions, and although the Fall Term may in some respects be pivotal for our access to justice concerns, and the future of ATJ in the 21st Century, it will give important clues for the future.

Lastly, it should be stated that despite the radical revisionism of some members of the Rehnquist Court as it relates to abortion (Roe v. Wade), and due process in criminal procedures (Miranda), were not overruled, or meaningfully modified, when case opportunities to do so were decided in this Term, to the surprise of many doomsayers. We cannot reliably predict what the Court as a whole, or even individual Justices will do when momentous decisions involving the stability, and the integrity of the law comes before them.

At the close of the 20th Century, Seattle hosted a World Trade Organization (WTO) conference and witnessed the ire and indignation of people who protested the prioritization of trade and commerce over human values. The WTO and the widespread demonstrations it engendered are a classic symbol and lesson for the end of the century.

In the first year of the 21st Century, the European Convention on Human Rights will become binding on the nations of the European Community. It may well be as important to the nations of Europe as was the adoption of the Bill of Rights to the fledgling new America. For Britain, and other European Community members, the Convention is binding on its courts. Britain now will have a written, binding constitution. What changes will flow from this potential profound event in Britain, and other members of the European Community, are not easily predictable, but its promise for a new era of rule of law, respect for human rights, and ATJ, gives hope to untold millions of people.

The United States was a leader in developing and promoting an international consensus that national governments should protect and guarantee the human rights of their citizens. In 1941, as the nation geared up for World War II, President Roosevelt declared as a national objective, "a world founded upon essential human freedoms." Roosevelt told Congress:

The first is freedom of speech and expression everywhere in the world.

The second is freedom of every person to worship God in his own way everywhere in the world.

The third is freedom from want ?

The fourth is freedom from fear ?

A more general understanding of human rights became a seriously accepted justification for America's full-scale participation in the war. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, borrowed heavily from the Declaration of Independence and Bill of Rights. In The Age of Rights, Professor Louis Henkin, then Professor Emeritus at Columbia Law School and Director of the Center for the Study of Human Rights, explains how the United States, by failing to join the primary international human rights agreements, and by failing to accept the existence of economic and social rights as a matter of domestic policy, now trails much of the world in recognizing the full range of human rights.

Human rights became part of the international legal structure through two post-war processes: incorporation into the constitutions of virtually all nations and codification into a series of international legal instruments, such as the Nuremberg Charter, the U.N. Charter, and the Universal Convention on Human Rights. Article VI of the U.S. Constitution reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Furthermore, in Article III, Section 2, the Constitution states:

The judicial Power shall extend to ? Treaties made, or which shall be made, under their Authority.

This evolution of the concept of international human rights as a product of the consent of nations to international treaties results in some significant differences between our views of domestic constitutional rights and of international rights. As Henkin writes, "for American constitutionalism, the individual had natural rights before the Constitution, before government was established."

Professor Henkin's book also consists of essays concerning rights in the United States. He notes deep problems with our constitutional jurisprudence, not only in federal judicial decisionmaking, but also law school teaching about the constitution. He criticizes the "textualists" who ignore the underlying theory of rights that informed the creation of American constitutionalism. He notes that the textual approach functions poorly "because the Constitution was not written to perform its modern role as the constitution of a powerful national government of world leadership and responsibility." Furthermore, the Constitution must be renewed by each generation. The underlying values of rights theory recognize economic as well as political rights and freedom. His views appear to largely coincide with those of his Columbia Law School colleague, Professor Black.

Henkin explains that economic rights are not a new concept in the United States. As early as 1944, President Roosevelt spoke of an economic Bill of Rights in his State of the Union message.

In our day, these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all. Among these are

• the right to a useful and remunerative job in the industries, shops, farms or mines of the Nation;
• the right to earn enough to provide adequate food and clothing ?
• the right to adequate medical care and the opportunity to achieve and enjoy good health;
• the right to adequate protection from the economic fears of old age, sickness, accident and unemployment; and lastly
• the right to a good education.

Henkin wrote, that the United States was the only major western nation that had refused at that time, to ratify the International Covenant on Economic, Cultural, and Social Rights. Thus, the United States had been hard pressed to assert its continued role as a human rights standard bearer. Henkin also noted that despite Congressional obstruction, the United States in fact was now a welfare state. And Roosevelt's economic Bill of Rights was deeply embedded in our national life even though it has not been given the status of a fundamental right in our constitutional framework.

Henkin hardly stands alone in his sorrow and embarrassment about the gap between our values and our conduct. The United States, two and a quarter centuries ago, brought to the world a promise and a hope of a society committed to the self-evident truths of equality, life, liberty, and the pursuit of happiness. These rights were unalienable; this new government deriving its power from the people would secure these rights. Those stirring ideas still animate most of the world, who continues to believe that they make us the last and best chance for freedom and equal justice under law. Would we now abnegate our proudest and most important place in world history?

A recent vignette makes dramatic the massive importance in the new century for the United States to re-commit itself to its fundamental constitutional values. In October 1997, Chinese President Jiang Zemin met with President Clinton in Washington, D.C. In the course of their meetings, there was a debate between the two leaders on issues of human rights, covered as page one news in most American newspapers on October 30, 1997. Jiang had affirmed his support of human rights, but stated:

I also believe that the world we are living in is a rich and diverse one; and therefore the concepts on democracy, on human rights and on freedom are relative and specific ones, and they are to be determined by the specific national situations of different countries.

Clinton responded:

We believe all individuals, as a condition of their humanity, have the right to life, liberty and the pursuit of happiness.

Subsequently, Clinton told Jiang (noting that the Chinese president was to visit Independence Hall in Philadelphia):

We believe liberty includes freedom of religion, freedom of speech and freedom of association. We believe governments must protect those rights.

Clinton's comments consistently endorsed the Universal Declaration of Human Rights and United States adherence to it. Jiang agreed, responding:

It goes without saying that as for the general rules universally abided by in the world, China also abides by these rules.

When Mr. Clinton gave Jiang a tour of the second floor residence at the White House, he stopped in the Lincoln bedroom, showing Jiang an original copy in Lincoln's handwriting of the Gettysburg Address. Jiang immediately recited the first paragraph in English. President Clinton's commitment to the most fundamental scriptures of our society: the Declaration of Independence and the Gettysburg Address, would be expectable, but Jiang's knowledge of those documents, and their language, reflect their universality. Most important was the President's affirmation that "we believe governments must protect those rights," affirming to Jiang that rights require the implementation of society if they are to be meaningful. Since these are the fundamental doctrine of our society we should hold our nation to the fundamental precepts our President urged upon the Chinese leader. If both leaders, who are legally committed to the Universal Declaration of Human Rights, by their own declarations, whatever the difference between the countries, they know this is a fundamental universal declaration for all people. We should take them at their word and insist that these fundamental concepts are at the heart of our jurisprudence.

Mr. Clinton, in criticizing China for the events at Tianamen Square, and their violations of human rights, stated, "But on this issue we believe the policy of the [Chinese] government is on the wrong side of history." It would be even more important that he state vigorously to many members of his own party, and to the overwhelming majority of Congress, that they too are on the wrong side of history; that they too have ignored their heritage; that they too have violated the most sacred scriptures of the American experience; and that they too have ignored the Universal Declaration of Human Rights.

In this new century, the United States must provide that leadership of moral suasion, and that Mr. Jiang and other world leaders take seriously their commitment to human rights. If so, in the United States and all the world, there can be a new birth of freedom, and government of the people, by the people and for the people will not perish from the earth.

We have spottily discussed the history and values of the past that have been woven into the radiant garment of ATJ. The fundamental right to equal justice under law has been shunned more than honored, at a time when a rich and powerful nation has witnessed massive disparities between rich and poor, powerful and powerless. In the midst of prosperity and materialism, unparalleled in history, government is corrupted, purchased and supine, making hollow promises and token concessions to those whose votes they need. Only the judiciary has the potential of protecting and implementing our constitutional values, and much of that essential duty is fulfilled in some state courts. But judicial elections increasingly are purchased, and judicial independence is crippled or destroyed. Federal judges have no election worries. But there has been more than a decade of judicial appointments by presidents who vowed to turn back the clock of the values of compassion, equality, and rights implementation, advanced by the Warren Court. They have succeeded in packing the federal bench. Since then, a Republican Congress has obstructed, delayed, and compelled compromises in Clinton's judicial appointments.

But there are important and vibrant changes occurring. Just as the Civil Rights Movement arose from the post-war revulsion of America's endemic racism, the Access to Justice Movement arose because of the attempted destruction of legal service for the poor and the powerless. It has been solidified and grown into a vital force at the beginning of the 21st Century. So, too, a companion movement supporting a re-invigorated judicial independence has come into being, and is rapidly gathering strength. Last of all, there has been impressive movement within the organized bar and the judiciary to resuscitate and make real our professional ethics, and the reasons why many of us wished to be lawyers. Increasingly, we take seriously the Rules of Professional Conduct Preamble.

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self government is impossible. Lawyers, as guardians of the law, play a vital role in the preservation of society.

Lawyers and judges are revisiting their professional heritage to which they have sworn fealty. In doing so, they read and recommit themselves to the Declaration of Independence, the Preamble of the United States Constitution, the bill of Rights, and their state constitutions, and the constitutional principles which they have sworn to support. They recognize that their profession in America cannot accede to betrayal of that noble heritage.

Fourteen years before I was born, Reginald Heber Smith, who modestly described himself as "of the Boston bar," published a book entitled Justice and the Poor: A Study of the Present Denial of Justice to the Poor and of the Agencies Making More Equal Their Position before the Law. Smith was a renowned attorney, an established scholar, a national leader of the bar, and a proponent of justice. He wrote:

No one, however, doubts that it is the proper function of government to secure justice. In a broad sense, that is the chief thing for which government is organized. Nor can anyone question that the highest obligation of government is to secure justice for those who, because they are poor, and weak, and friendless, find it hard to maintain their own rights. This book shows that we have not been performing that duty very satisfactorily ? We can end the existing denial of justice to the poor if we can secure an administration of justice which shall be accessible to every person no matter how humble.

What Smith wrote was, as he clearly stated, self-evident. The plain language of our constitutional documents and our most cherished jurisprudence could not be denied. How could America have gone so wrong? But well within Smith's lifetime, he had seen the betrayal of the self-evident. In the 40 years before his book was written, the Fourteenth Amendment was scuttled; corporations ? instead of being servants of the state ? were given the rights of human beings and became the master rather than the servant of the people; the Declaration of Independence was dusted off for Fourth of July parades, but neglected the rest of the year; and the jurisprudence of the period, in the large, was non-existent or tawdry. There were, of course, some strong, but largely unheard, voices, including on our highest courts. I mention the largely forgotten name of Reginald Heber Smith, and what he wrote, to emphasize the changes one sees in one normal lifespan and how inconceivable it would be to predict with any confidence what the future will bring.

I was born in 1924, in a small northern Indiana industrial town. My first memories are of horse-drawn delivery trucks bringing milk and ice to our door on their regular rounds, winter and summer. In my childhood, we purchased a crude new telephone. It was a party line we shared with neighbors, who could and did listen to each other's conversations. Long distance calls were unheard of and far too expensive to afford. Years later, when I had my own family, our first crude black-and-white television set was purchased. We then had two small boys, who remember this wonder, as I recalled our horse-drawn delivery system. Today, computers become obsolete in five years.

I remember penny candies, three cent ice cream cones, and nickel hamburgers. For a dollar, the neighborhood grocer would fill a large sack that a small boy could bring home and that would feed the family for many days. My first memory of social consciousness was the Great Depression. I am a Depression child. I had small jobs, door-to-door magazine sales, paper routes, cutting lawns, where each penny was saved because it was the only way I would ever get to college. And I saw many people far poorer than my family, for whom a decent meal, a roof over their head, and certainly a job, would give them some hope in an industrial town where unemployment was endemic and poverty widespread. Long before high school, I was aware of the rise of Fascism and the anti-Semitism of Hitlerism. When I was 14, I fantasized that I could somehow go to Spain to fight with the Loyalists against Franco.

My point is, that if one looks at the major events of our century, who could have expected that the Third Reich, whose power had overrun all of Europe, would only last 13 years. But they were the most impressionable 13 years in my life, because in that time, World War II monopolized and forever impressed my generation, in ways which forever altered our perceptions of our world. In the post-war world, the Soviet Empire and its seeming massive power and danger, tortured and distorted American political life, our civil rights and liberties, and often the possibility of even civil discourse. Yet, the Soviet Empire suddenly distintegrated, after only 40 years of existence. Neither the rise nor the fall of Nazi Germany or Soviet Russia was a priori predictable, except in hindsight. In my 76 years on this earth, I have seen horse-drawn delivery trucks, and cybernetic wonders that travel to every corner of the world in seconds.

As I look to the future, to me, the only reliable power is not massive wealth, nor military force, nor technology, but the power of the intellect, the compassion of the heart, and the respect for the heritage of all mankind. Hope and optimism for the future is for me essential. It is the existential necessity for commitment and thoughtful action. It is the best that we can offer in a world of rapid change.