American Constitutionalism in Historical Perspective (packet)


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Richards[1].ConstitutionalLaw.Fall2005.3 (1)

Access to Cts: Indigency matters, c/n have equality before the law if ppl are forced to pay who c/n. P. 860

  1. Criminal Law: can have devastating impact, equality here is instrumental, like voting rts, must have equal access. This same level of access has been extended to civil law.

    1. Griffin v. Ill.: (1956) p. 861 transcript for appeals NOT const. rt but fact that poor person c/n buy it is const. issue. State must provide trial transcript to poor criminal when appealing conviction on non-fed grounds

    2. Douglas v. Ca. (1963): state must appoint counsel for indigent D for first appeal which D has a rt to.

  2. Civil Law: extending equality rts in the tradition of privacy to marriage, paternity tests, divorce (Boddie), termination of parental rights (MLB v. SLJ). Where there is no alternative, c/n disadvantage the poor in intimate matters.

  3. Harlan: Lochnerizing decisions. Indigency d/n matter b/c US built on social inequality & mkt system. But judges d/n see this as Lochnerizing b/c indigency is in connection w/ a basic rt (equality before civil and criminal law) and thus matters. Shows limitation of indigency rt though b/c it needs to be in connection w/ const guaranteed rt for it to be protected.

  • Poverty

    1. By late 20th C, strong background of jud rev in equal protection prompted lawyers to try and get fund rt in eco min. Voting Rts Act of 1965 guarantees ppl of color their 15th A rts—judiciary c/n handle this so Congress stepped up. Why don’t we have a fund rt addressing poverty? We have fund rts of free speech, religious liberty, voting rts, access to the cts, etc.

    2. Background: no fund rt to eco min recognized by McCulloch: judiciary is better suited to leave eco matters to Congress. More recently rejected as well.

    3. See Dandridge: rt to eco min is NOT justiciable (p. 871); Lindsey v. Normet: no fund interest in decent shelter and possession of one’s home


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