Equality and governmental action

Tonight I shall speak of the American ideal quality and ideal interestingly enough not to expressly articulated in the Bill of Rights but one certainly encompassed in what Madison called The Great rights of mankind. The storm over decisions of our court on the constitutional guarantee of equal protection in cases involving state sanctioned racial segregation has tended to obscure the historical fact that the quality and liberty were the twin themes of the American Revolution. The county sought to be free from allegiance to the British crown but they also professed utilitarian principles.

You remember in colonial America that one of the things that got ruled here was that no man including the king had any dominion over an M other men and the revolutionary thinkers wanted no part in this country of titles and trappings. And that's reflected in our Constitution. Which you'll remember. Contains a specific provision against titles and trapped in fact such a specific provision that when an American goes abroad for his government and is decorated by a foreign power he cannot accept that declaration. He must repose it in the State Department where it comes to rest. And then as a private citizen he may up tame his middle.

When he is retired to private life. I thought there was a separation of powers in our government and having been abroad for our government. And having been decorated I asked for my decoration when I was appointed to the court only to be told that this inhibition which I should have no applies to justices as well as members of the executive branch of the government. The creed of our revolution was expressed by a homey philosophy articulated in colonial times which was advice to the sons of the revolution. Remember that you are as good as any man and that you are no better course its greatest formulation was contained in the Declaration of Independence and the time treasured words We hold these truths to be self-evident that all men are created equal.

Now the American concept of equality had very deep roots in the history of Western civilization. The only way to break tradition. The idea of equality derives from the concept. That all persons are created in the image of God. In the Christian tradition to the belief that all are one in Christ to the Romans and the Greeks that all men are entitle to equal station by the laws of nature and the Democratic theorist John Locke and Thomas Jefferson drew from all of these sources and Locke expressed it I think pretty well about our own country when he said that all man and their rulers. Are to govern by promoting Gantt of the stablished laws not to be varied in the particular case

but to have one rule for the rich and the poor. And the favored of court. And the country man at pla. Now since the idea of equality was so pervasive at the time of the Revolution How do we explain how the Constitution was silent on the subject. Did not expressly mention the sun. Well there are several views there are several reasons in my view for this omission in the first place although equality is not expressly mentioned it pervades the doc Section 4 of Article 4 of the constitution guarantees to every State a Republican Form of Government and a republican form of government. Of course connotes the Equality and the very structure of our Constitution for our national form of government.

Creating an executive elected by the people and the legislature an independent judiciary construct a republican form of government for the nation. You remember that Section 2 of Article 1 mandates that the representatives of the National House be chosen by the people of the United States. And this is bodies in my view another concept that the legislature should fairly and equally represent the electorate. Benjamin Franklin deemed this necessary since in his words the all of one man is dear to him as the all of the matter. But the poor man has an equal right. But the more need to have representatives in the legislature than the rich man.

There is another reason why the framers I think did not find it necessary to mention the equality they naturally assumed. It wasn't compassed within the concept of liberty. Whose blessings they heralded in the preamble to the Constitution in treating equality as a component of liberty. The framers were drawing again apart all Western traditions dating back to Magna Carta and the famous declaration of rights. Because this became an Anglo-American tradition I guarantee to all of equal justice under wrong. And you will remember that when they are court in 1054 decided the great case of Bob Brown vs. Board of Education which dealt with the Equal Protection Clause of the Constitution it also dealt with the same problem in the District of Columbia where the Constitution with respect to the federal government

contains no equal protection clause. And it was held in invalidating segregation in the days of decoration in the District of Columbia that that could properly be done under the due process concept which assimilated the equal protection concept for this purpose. Now of course there was another reason in our history and that is this that while the national constitution at the time of the adoption of the Constitution did not expressly a mention equality most of the state constitutions did and it is very interesting to look at how they did it. They didn't express language in almost every instance and they did it in a way to make sure that the state's obligation ran to the people to assure and protect the equal status of people under the law.

And you will recall also I'm sure that at the time the Constitution was promoted it was not deemed necessary to restrain the federal government and it was only when the framers discovered that they could not get the constitution adopted without an express bill of rights that they wrote in a Bill of Rights to restrain the federal government. But finally and realistically that was another and not very creditable reason why equality was not mentioned and that was the institution of slavery and the political difficulty of achieving union without foundering the hard reality of slavery and the most that the pragmatic framers of the Constitution could do at that point was to empower Congress to behave at the importation of slaves. After 18. Oh wait. In some expressly our Constitution

the Constitution of the new nation while heralding liberty in effect declared all man to be free and equal except black men who are to be neither free nor equal. And this inconsistency reflected a fundamental departure from the American creed from the American theory from the American tradition even at that point a departure which it took a civil war to set right. With the adoption of the 13th 14th and the 15th Amendment to the Constitution. Freedom. And I think then was expressly guaranteed to all. And equality was expressly guaranteed dong regardless of race color or previous condition of servitude. And these amendments clear the

way for the type of society the professor kind so well described as characteristic of American society. In his introduction to the great rights of society which is fresh equal just open free and forever respectful of conscience. Now it is in light of this commitment to equality in American history and the language of the 13th and 14th Amendment that I read these clauses. To quote chief justice St. as revelation of one of the great purposes which weren't intended to be achieved by the Constitution as a continuing instrument of government revelation of a great purpose. And in my view the Constitution in this regard as with

respect to all of the great purposes should be read and interpreted as revelation of those purposes. No if we look back historically the cases following the decision of the court in class Ian Ferguson the separate and equal case in 1896 too often tended to negate this great purpose of equality. Since Brown and Board of Education in 1954 the court in my view and I think I can speak on this subject since I was not on the court during this period as firmly and consistently sought to give real meaning to the Equal Protection Clause of the Constitution. In doing so the court has unequivocally returned to the Constitution from which it had departed over a half

century before in Plessy and Ferguson today as the framers of the Civil War Amendments plainly intended. As you can gather from reading the the legislative and constitutional history and as Justice Harlan. The grandfather of my brother Harlan correctly stated in his placid the same our Constitution is colorblind and neither knows nor tolerates classes among its citizens running the board of education. The school desegregation cases naturally has been a much discussed case in our history. It is the case which created the concept of storm over the Supreme Court significant to me that the consensus of virtually all commentators in the profession.

Judges are not immediately involved. Law professors teachers hand political scientists regardless of their otherwise differing analyses. Their conclusion is that the separate but equal formula Plessy was not in accord with the precedence before 1896 and the brown and the decisions that followed it. To quote Professor Freud. We're not an abrupt departure in constitutional law or a novel interpretation. The old doctrine of separate but equal announced in 1896 had been steadily eroded for at least a generation before the school case in the way the precedents are whittled away until they finally collapse. The Brown case was decided by a unanimous court. Four years later in Cooper Aaron the Little Rock School cases which we all

recall the court in a very unprecedented opinion signed by all of its members reaffirmed the Brown decision. The court stated that the basic When I say signed I mean expressly signed opinions or joined in by all of the members but to my recollection the Littlerock case was the first case where an opinion was published under the signature of all of the nine justices. The court stated in doing this that the basic decision in Brown was unanimously reached by this court only after the case had been briefed and twice argued and the issues had been given the most serious consideration since the brown opinion. Three new justices have come to the court. They are at one with the justices still on the court who participated in that basic decision as to its correctness and that decision

is now unanimously reaffirmed. Since Cooper and Aaron two new justices Mr. Justice White and myself have come to the court you cannot profess to speak for Mr. Justice what. I have learned on the court that you had better speak for yourself. Unless you have the votes. But the subsequent decisions. Of the court. Dealing with state sanctioned racial discrimination in schools and other places facilities have established indeed that the new justices Justice White and myself join in upholding the correctness and logic of the Brown decision. Now in the case invalidating state sanctioned racial discrimination the court has uniformly found with very little dissent the state action which the fourteenth and fifteenth amendments expressly

prohibit. There is no mention of state action in the 13th Amendment. The word state action do not appear in the amendments. They are lawyers talk their lawyers talk like they have been frequently adverted to in the opinions of the court. In one of the classic statements of the sad civil rights cases in a state action of a particular character that is prohibited and civil rights such as are guaranteed by the Constitution against state aggression cannot be impaired by the wrongful acts of individuals. Unsupported by state authority in the shape of laws customs judicial or executive proceedings. And just at the last term in the Citizen cases the chief justice speaking for our court. Said this cannot be disputed that under

our decisions private conduct abridging individual rights does no violence to the Equal Protection Clause. I'm last to some significant extent. The state in any of its manifestations has been found to have become involved in this. Now the state action concept has been the subject of a great deal of conflict. It's of obvious public interest in light of cases now pending before the court. At this very term the current crop. Of sit in cases of judicial propriety what my predecessor justice brink Puerto Rico once called judicial lock up precludes me from discussing these cases. I only observe this by way of comment on the past decisions without prejudging the present or future ones that in my view the court's decisions finding governmental action in the

varying situations which have been presented to it were correct. Now we have not always been able. Court has not always been able to articulate these decisions to the satisfaction of the court's professional audiences. But I have learned even in one term that these like New York's first night critics are pretty hard to satisfy. The. It was it was originally conceived I think and the decisions of the court reflected the slaughterhouse case I think is a case in point that you know adopting the 13th and 14th the 15th Amendment the Congress and the people were dealing with civil rights and with extirpate ing slavery and its vestiges from the country. In fact the court the contemporary court the court most contemporary to

the amendments observed we doubt very much whether any action of a state not directed by way of discrimination against the Negroes as a class or a con of their race will ever be held to come within the purview of the Equal Protection Clause. This statement alas trades the dangers of making broad and sweeping statements. Because just a few years later stimulated by the sweep of the Industrial Revolution cases began coming to the court involving economic interests and the power of the states to classify businesses for purposes of regulation and taxation. And in 1886 the court unanimously held that the Equal Protection Clause was relevant in cases of this character and applied to corporations as well as individuals. As a

consequence from about 1886 until the late 30s most of the cases that came to the Supreme Court had nothing to do with civil rights which is the slaughterhouse court had observed was the primary subject of the amendments. Instead they dealt with state regulation or federal regulation of economic interests. And here the history of the court pretty much parallels the treatment of those cases under the due process clause of the Constitution. What are great the equal protection clause which I've characterized as revelation of one of the great purposes of the Constitution was in this period relegated to a secondary role. Nineteen twenty seven. Justice Holmes characterized the Equal Protection Clause as the usual last resort.

Of constitutional arguments. The great Justice I'm sure with his humor and insight would have been much interested in the fact that in this case the last has truly become the first because in recent years the reverse has happened. The equal protection clause is becoming the first resort of constitutional arguments. It is not my purpose tonight to talk about the great great controversy which developed over the court's economic decisions. But it is true and I shall merely mention in passing that commencing with the late 30s the court has called a halt to the use of the Due Process Clause as a means of invalidating economic regulation. In terms

of what a majority of the court. May deem to be on lines last term perhaps the I almost said last word what I've learned in the history of our court there is no last word. The latest word was said by Justice Black speaking for the court in the Kansas dead adjustment case. And those of us who lived during the New Deal period will regard this to be a commentary upon that period just as Black said we refused to sit as a super legislature to weigh the wisdom of legislation. Then we emphatically refused to go back to the time when courts use the due process clause to strike down state laws regulatory of business and industrial credit conditions because they may be on wives the improvident or out of harmony with a particular school of thought.

Whether the legislature takes her it's textbook Adam Smith Herbert Spencer Lord came or some other is no concern of ours. The Kansas statute may be wise or unwise but relief if any is needed. Lies not with us but with the body constituted to pass laws for the state of Kansas. For law students who are dealing with judicial philosophy and trying to make sense out of our philosophy command via the reading of the section to determine whether a judge is just as black and speaking as an activist or is exercising restraint in this passage. The equal protection clause may still have a little more vitality in the economic area. If the court's opinions are to be read that way 1957

the court struck down a a. Equal protection regulatory statute in Illinois my home state which regulated all currency exchanges and omitted the American Express Company from the regulation and therefore we must try to determine why it is that this aspect of legal protection still remains. Now the charge has been made that since the late 30s the court has unduly expanded the meaning of the Equal Protection Clause in cases involving personal rights and unduly conflict of the clause in cases involving economic regulation. This is in effect charging the creation of a double standard. I do not believe this charge can be sustained by reference to the intent

of the framers. There is every evidence that the thirty ninth Congress intended the Civil War Amendments to protect the newly freed slaves and personal rights in general. There is not even a scintilla of evidence in the debates and reports that the 14th Amendment was otherwise to or Brit or curtail the police power of the states. All you have to do is read the opinions of the court contemporaneous with the adoption of the 14th Amendment. Those that immediately followed thereafter by justices who could rightly say that the history of these amendments is fresh within the memory of all of us to find the reputation of the double standard Chuck. Rather than departing from the Constitution by making this change and it has been a change it is

my conviction that the court has in this instance returned to and is endeavoring to abide by the single standard of the framers to apply the essential and basic purpose of the 14th Amendment which dealt with human rights and did not deal with the subject of police power in the terms of the economic regulation. The equal protection clause has been applied in many ways in my view one of the great ways in which it's been applied is illustrated by the famous case of vehicle vs. Hopkins. You quote was a Chinese laundry man. In San Francisco. He invoked the constitutional clause because under a San Francisco ordinance

the city authorities have denied him a license to operate his laundry and it denied licenses to 200 other Chinese laundryman. But all nine Chinese all white Lawdy men receive their licenses. The arguments on its face was a fair and nondiscriminatory ordinance. The court held it unconstitutional and they made the famous statement that equal protection is denied. We're along is administered with an equal hand and with an evil eye. I've often wondered about the year quoque case. I've often wondered how you quote got his case to our court in 1890 for a period not notable for extending legal aid to humble Chinese laundryman. And.

My colleagues and I my law clerks and I did a little piece of research because my training in tradition made me suspicious of the fact that the wall must have been represented by his union. And. And indeed. It turns out to be so. In the brief filed by the state of California. The California Court not in our court has a great complaint is made that you quote belongs to a tong and that this rich and powerful Tong hiring able and astute lawyers are the ones who brought yet close case to our court for its resolution. But John Smith applying in 1964 for a license to conduct a small business or to rezone his property or to protest and an equitable tax assessment

or who just doesn't want to be pushed around by a government administrate of officer he lacks the assistance of a tug or a union or other group interested in protecting his rights. Unless he's willing to expand meager resources or mortgage his future an expensive and time consuming litigation his constitutional rights to equal treatment will exist in theory only. And they want exist in theory only particularly in a period when courts exercising self restraint are reluctant to interfere with the police power of the state. But even in my opinion his claim if it is not of constitutional dimension. If he has a grievance. In a democracy devoted to the fair treatment of

all deserves a hearing by someone other than unjustly or justly accuse administrate and Scandinavia they have a very excellent institution called the Ombudsman and the ombudsman is a public official to whom the average citizen can resort with a complaint against his government and the operations of his government. He's an independent officer of the government. I think that this institution renders a double service of that it protects an individual so that he has access to someone who can investigate his grievance. It assists the public official by clearing away from unfounded grievances. And I think the Ombudsman

which will have to be adapted to our institutions because we are much larger well adapted to our towns in our cities and our villages and even the nation can help in the realisation of the ideal of equal treatment for all citizens. I want to say a word since I have spoken of equality and civil rights and equality in economic matters. How about equality in political affairs. A student of our Constitution reflecting upon the framework of our Constitution and the commitment of our country to politically quality equipment which we did not always carry through because we have to make some compromises. The Senate of the United States for example is a compromise of the principle of political equality. Compromise essential for the adoption of the Constitution. And I do not by any

intimation even criticize the companies but basically basically our Constitution who sources the people it would be to be naturally assume would safeguard the right to vote. So the ballot of one citizen would have no more weight or influence than that of another. I don't think anybody can quarrel regardless of it's application of the principle with the statement made last term by the court in Graham sentence. The concept of political equality from the Declaration of Independence to the Lincoln's Gettysburg Address to the 15th 17th and 19th amendments can mean only one thing one person one vote. Now this is not a concept conceived by our court last term. It was stated by Madison when he said who are to be the

electors of the federal representatives. And this was in the Federalist Papers not the rich more than the poor not to learn more than the ignorant not the haughty airs of distinguished names more than the humble Psalms of OB secure an unpropitious fortune. The electors are to be the great body of the people of the United States. It was not until 1962 and Baker in car that resort to the courts under the Equal Protection Clause for relief against political inequality was given real sucks. I was not on the court when Baker in-car was decided but I share the view reflected by my vote last term in grandson that Baker and Carr correctly held that a denial of equal voting rights represents a justiciable equal protection claim.

It's very interesting that this decision was greeted with a storm of applause rather than a storm of criticism all over the country and you noticed in the papers tonight in one of our said one of our states there's been a decision has unleashed a veritable flood of litigation. And here too I find myself judicially restrained since we have in our court many cases now dealing with an application of the baker and Carr principle. I really want to say this. That whatever the result in future cases Baker and Carr. Will stand as a classic illustration of a situation in which the court was compelled to act in vindication of constitutional voting rights because of the failure of the legislatures to assure equality in this area

and equality which both under the national constitution and by virtue. Every of every state constitution or national constitution in the case of the House of Representatives has a state constitution under state constitutions. Was mandatorily required of the legislature. Finally I would like to say some words. How about discussing equality in the administration of criminal justice. One would suppose that this would be the most basic concept of equality that equal justice be afforded to the rich and the poor alike. The theme which runs through all of the equality case and this is a very ancient thing ancient in legal tradition ancient in Biblical tradition. There are members of the biblical St.. You shall do no injustice in judgment. You shall

not be partial to the poor or defer to the Great but in righteousness shall you judge your name. And I believe I know we take the judicial oath. Other federal judges do. I think most state judges do. We all take in addition to the constitutional law. The judges oath that we will do equal justice to the poor and to the rich. Now in this area whatever anybody may say about To what extent state is involved in private discrimination or prejudice in this area there can be no question about state involvement and responsibility. When the poor are denied equal justice. They state is the plaintiff in the lexer appoints the judges and hires the prosecutors. It retains and compensates expert witnesses and investigators that harass. And finally it

lodges The convicted. You know it's just what is very interesting is that while we have hundreds of cases in our court applying the equal protection clause and economic cases we have scores of cases now applying it in race cases. We have very few applying it in the case of assuring equal justice to the poor and to the rich. In fact it was not until 1956 that in the great case of Griffin in Illinois our court since we had our first broad pronouncement in the area of economic equality in the criminal process. In that case Illinois in effect conditional appeal upon buying a transcript and as a result poor man could not appeal the right afforded to everybody else in the court hell it was a denial of equal protection to make this type of discrimination.

Court opinion said and properly said there can be no equal justice where the kind of trial a man gets the pans upon the money that he hands Last term we decided several cases of this time. But I would like to talk about the future in this area. I cannot with propriety predict how much further the equal protection clause will require the court to go in the elimination of economic inequality in the administration of criminal justice. But no judge or lawyer or layman is inhibited from emphasizing the moral imperative implicit in the noble concept of equal justice before the law. What the Constitution does not demand yet may still inspire. Now. There

are many ways you can look at this problem. But among the ways you must look at it is this. The problems of equal criminal justice do not only start at the trial and on appeal. Nor are they confined to the indigent. They also extend to the near poor and the average wage earner as well as the end. When the police for example conduct a round off of suspects they generally do so in poor neighborhoods rarely in middle class communities and as a result more poor than rich are arrested for crimes they did not commit. This is an era when we all fill out forms when we seek jobs

and we do not know how many people with an arrest record not a conviction record are unable to obtain jobs or lose their jobs because of Don't loose involvement in such episodes. Nor do we even know how many people without means are aware of their rights in this situation. One of the rights maybe. I'm not sure that it exists everywhere. I'm sure it ought to exist everywhere. As a matter of legislation I have a right to have a faulty arrest record expunged from the records. So that it will not be necessary in making an application to refer to any faults. They don't let us all rest. Often after arrest the accused is poor who is poor

must await the disposition of his case in jail because of his inability to raise bail while the accused who can afford bail is free to return to his family and to his job. Equally important he is free during this critical period to consult with his lawyer freely to prepare his defense. I write the inevitably circumscribe when you are lodged in prison. Now if you're poor right a bell becomes not an actuality but very often a knowledge and a great constitutional command is thereby frustrating but. Not having means whether you're indigent or a wage earner offers other frustrations to AI proper defense of the case such a person generally has few if any

of the investigatory resources available to the prosecution or to the person with means. Fundamental fairness would seem to indicate that these types of services ought to be provided to all and not restricted to those who can afford the expense of paying for them. Here too we have ample precedent of brawn if not here in Scandinavia. By and large if you're arrested for an offense the state provides you with all of the investigatory means that you require in order to prepare your defense and that extends to psychiatry's ballistics experts laboratory tests and all of the expert services that you need. And interestingly enough those services

are provided. To the rich and poor alike. No means test is exact for those services in Norway I believe. If you are convicted and you're a rich man if you are convicted and you're rich man you are then Bilmes for the state services that have been provided for him. I think we have much to learn from this experience after conviction. A defendant's financial condition may have a significant effect on whether he's placed on probation or sent to the penitentiary or whether and when he was paroled. From the penitentiary probation and parole. By and large in the United States depend upon the availability of a job and sometimes depends upon getting psychiatric treatment for the offense

for which you're committed. My experience as secretary of labor demonstrates to me that that is in effect a denial of Pirlo. And often the only psychiatric test aid which is available even in the enlightened states is institutional psychiatric help. They are not indigent or a non wage earner can get the psychiatric help outside of an institution by paying for it. Why should I as a matter of fairness why should not they state that dedicated to the proposition of equal justice make these services available. I was saying at dinner tonight. These are not new ideas. When I was in law school in 1926 to 29 Dean Wigmore the dean of our law school way back then advocated the availability to all

persons charged with crime with all type of expert and investigatory services. The fine imprisonment penalty which by law judges are compelled to impose on a defendant for many petty offenses as well as serious ones frequently mean imprisonment rather than fun for a man without means. What is the choice of paying $100 fine let alone a thousand dollar fine. Or spending 30 days in jail for a person who doesn't have the hundred dollars or the thousand dollars. Are we not in those instances really imprisoning such a man for debt and not for his crime because of a man for means can pay up. Then this seems to be the practical result. There is even concern expressed by very

competent observers that the death penalty is imposed with disproportionate frequency on the poor warden laws. The great prison warden. Who witnessed the execution many Hsing-Hsing inmates in his book said this If a wealthy man or the son of a wealthy man kill he is insane or deranged and usually either go scot free or into an insane asylum. If a poor and friendless man kills he is the same man who committed willful murder for which he must die. And we owe some reflection on this subject. I will say that without again in the many any of you on the constitutionality of the matter that the courts and other organs of the government both state and federal have not brought their ingenuity.

Sufficiently to bear on these crucial issues in the federal government and in many other states. The courts have the power to supervise the administration of criminal justice. Then this is a source of power as demonstrated by court decisions both in the federal area and the state area which can give great relief in these matters without the necessity of constitutional adjudication. And of course the legislature can do a great deal about this stuff. In many parts of the world and in the few states. When arresting people when men of means are involved arrests are made in a dignified manner and in other countries where they have means or not. Arrests are made in a dignified manner. I do not talk of hardcore criminals or or

gangsters or racketeers but I want to remind you that 1 million people are sentenced every year and they include hundreds of thousands of people who are not gangsters are racketeers going to have violated the law. Now when a person is accused. And is being investigated then many accused are not convicted. The great proportion of them I raise the question of why you cannot be called the police can of course buy a summons rather than a bodily arrest. This is a procedure known to the law. While I do not suggest that it can be done in every case it can be done in many cases. Recent studies have shown that the right to bail can be afforded without using bail bondsmen at great expense unavailable to many people by a careful

screening of the people who are involved. Pilot studies in this very state indicate that it can be done pilot studies made by the way under foundation auspices. Well they should have been made it seems to me a long time ago by our government. The government could as I've intimated provide means for providing future parolees with the type of services they need. Finally I would like to emphasize this our concern ought not to be limited to the very poor alone. Our concern ought to extend to the millions of the American families who are above the poverty level. The level which has come so much to the notice of the American people recently. For them crime may be being accused of crime may be

indeed a worse problem than for an indigent and then didn't today's entitled to a lawyer by constitutional command and by the decisions of our courts. But unless you are able to file an individual then independency statement then you are left on your own resources. And this being so. It imposes an enormous burden upon those who are charged with crime. It seems to me that any consideration of this subject should include hardworking people who are not indigent but who can without extraordinary sacrifice raise sufficient funds to defend themselves or a member of their families against a criminal judge. The question is inevitably raised. What about the victim. What about the

victim of a crime. Is he not entitled to consideration. Of course he is. What do we do about a victim. You know our country. Nothing. Nothing. There is no provision. For a victim of an offense many countries throughout the world recognize that a citizen in our Constitutional language is entitle to the equal protection of the laws and where the state has not afforded equal protection. Then the state must make the victim whole for what has happened to him. And we have not done so. Some things you can insure against and some people do. But many people cannot and many people do not insure against the terrible things that happen to the victim of an assault or

a robbery. These are a few questions which are raised on this subject which I think require attention because in all candor we must confess that the government in this country both state and federal have not done all that they can do in this area. But we cannot even deal with this area adequately we can deal with it in part unless we deal with the whole dimensions of the poverty problem. It was correctly pointed out in the recent report of the Council of Economic Advisers that poverty has as its by products delinquency crime irresponsibility immorality and indifference. And every student of the subject will acknowledge

the truth of this linkage between poverty and crime. The great bulk of our prison population comes from the ranks of the economically underprivileged. I root cause of crime is economic distress and its byproduct. Now I've emphasized those aspects of the picture which are discouraging. There are some encouraging signs. A recent report of the attorney general's Committee on poverty and the administration of criminal justice was a milestone in recognizing the problem. The project I referred to here the Manhattan Project was a milestone. New Haven Connecticut neighborhood social legal program is a great program because that program reaches beyond just the criminal area to trying to take care

of the legal problems of the average neighborhood. When a concerted intelligent way there a team consisting of a social worker a lawyer and an investigator is assigned to a poor neighborhood to uncover the whole gamut of their legal problems whether executing a credit agreement or settling a domestic dispute paying taxes or being charged with a violation of the law. Of course the reformulation by the American Law Institute of the criminal substantive criminal law is highly important in this area. Finally the bar has been energized. By reason of decisions requiring legal representation to its traditional wrong which in exercising our early history when criminal practice was engaged in by men like

Johnny Adams Daniel Webster and Abraham Lincoln they were criminal lawyers and I would hope that young law graduates and older members of the bar will bring their new and only experience to bear on the problems of criminal justice professor Corwin in his book on the Constitution. It's pointed out that we live in a world. Whose populations are everywhere fired. By the notion of equality. Our nation's great strength as a leader of such a world lies not only or even primarily you know our material resource. It is even more true today than it was over a century ago that the great advantage of the American is that he was born equal and that in the eyes of the law Americans are all of the same.

A state the first chief justice of the United States John Jay spoke of the free era of American life. If as a people and as a government we have not always kept the error free. We have sometimes forsaken the American ideal for other prejudice. Happily however the prejudice most deeply ingrained in Americans is the constitutional prejudice for liberty and equality. If in this lecture I have merely restated this then it is because here as elsewhere we need education in the obvious more than investigation of the OP's Q.. Thank you Arwa at me too.