The legal landscape confronting public interest lawyers for the poor in 1999 is quite different from the landscape of 1969. At that time, a liberal Supreme Court was considered a realistic forum for finding in the Constitution a guarantee of baseline elements of survival, and there was optimism that continued progress toward reducing poverty was forthcoming. We did not know it then, but the deaths of Dr. Martin Luther King and Robert Kennedy and the election of President Richard Nixon were harbingers and agents of change in the political landscape that have been operative ever since.
Four facts frame the world as seen by advocates for the poor in 1999. One, the Constitution is not our friend. If thinking about the rights of the poor means thinking about any constitutional rights the poor have as a particular consequence of their poverty, the short answer is, they do not have any. The Supreme Court saw to that in a series of cases in the early 1970s. Now we know that the Constitution provides no recourse for people who would invoke it to seek a judicial response to their need for income, health, housing, education, or any other element of survival.
Second, if we had hoped we could develop a federal statutory safety net for the poor comparable to that of European nations, we can at best claim mixed success, with a particularly sad record in the current decade. Federal law provides far less than a full menu of assistance to people in need. Particularly after the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the “Act of 1996”), the question of whether people can obtain help when they are in need depends more than it has for a long time on where they live.
Third, every state is different. While there are some nationally set income floors for the elderly and for some of the disabled, for people of working age who have children and for people of working age who do not have children, there is little uniformity. To know what the rights of the poor are around the country, we would need to read fifty-one statute books and, given the variations among counties, thousands of pages of implementing regulations and local laws.
Fourth, the assistance we afford the poor in America is at best a patchwork, with gaping holes–a far cry from the social welfare protections afforded by every other industrialized country. The gaps are not only found in the safety net assistance for those who need financial support, but also in the employment opportunities, in the structure of support for the millions of people stuck in low-wage jobs, and in the education and preparation we offer to the next generation.
These four briefly stated facts speak volumes to those who would beadvocates on behalf of the poor. First, the targets for advocacy efforts have changed radically over the past twenty-five years. Going to court and invoking the Constitution to bring about basic change for the poor is a non-starter. By now this elementary point should be fully understood, but it still comes as a shock to law students who see Brown v. Board of Education as the paradigm to end all paradigms. That a single Supreme Court ruling nine to zero can establish racial or economic justice as the law of the land is a romanticized picture of litigation. Brown was the culmination of decades of work, and implementing Brown took decades more.” Brown did not have traction until it was married to the civil rights movement, which in turn, produced a politics that spurred the civil rights legislation of the 1960s. Lawyers played roles throughout this time in and around the debates in Congress and in bailing demonstrators out of jail, as well as in hundreds of follow-up school desegregation suits. Desegregation was never easy, and it never involved litigation standing alone.
Thus, achieving racial and economic justice through the courts is more complicated than it seems in gauzy retrospect, and in any case, that was then and this is now. Basic relief is obtainable from the courts now only when a state constitution presents an opportunity or when Congress or a state goes too far (which would have to be way too far) in actively injuring the poor in some way. The numbers of individual poor people who need lawyers to represent them in court far outpaces the number of lawyers currently available to represent them. Yet, when we say to law students that working the legislative process in Congress or in the states or that arguing with welfare bureaucrats is real lawyers’ work, to say nothing of working the media or strategizing with organizers, the first reaction is too often incredulity.
Maybe at one time the alternative to the Supreme Court was as simple as just working the other side of the street–literally; cross First Street Northeast and walk over to Congress. After all, Congress enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965. And in the 1960s, federal civil rights legislation had its Congressional counterpart in the field of poverty: the “war on poverty” and a long list of other federal statutes and programs made a difference in the lives of poor people.
By Ben Notterman In order to address the dearth of available legal services for indigent communities, we should put ideology to the side and focus instead on the verifiable economic effects of legal aid. These effects can be leveraged to secure funding
This is a transcript of a speech by Vince Warren, Executive Director of the Center for Constitutional Rights (CCR). The speech was originally delivered at the Bertha Justice Institute Social Justice Conference on June 6, 2014.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.