“Time for a New Generation of Lawyers to Answer the Call”

Remarks by the Honorable Nathaniel R. Jones

District of Columbia School of Law

May 19, 1996

It was a call – telephone call – from your distinguished Dean, my long time colleague and friend, with an invitation to address you that led to my presence here today.

It was a call – a telephone call – in 1985 from your Dean [William L. Robinson], then Director of the Lawyers Committee for Civil Rights Under Law, that opened to me one of the most transforming chapters of my life. His inquiry at the time was whether I would be willing to go to South Africa as an observer at a trial in which 16 Blacks were under indictment for numerous counts of treason and terrorism. My affirmative answer and subsequent trips to that troubled land during the most violent and repressive period of apartheid, gave me broadened insights into the meaning of what I, in my lifetime, and civil rights leaders had been engaged dating back to the infamous Plessy vs Ferguson decision in 1896.

I thank you, Dean Robinson, for what that opportunity has meant to me as a person, a lawyer and a Judge, and I shall always be grateful to you for turning to me and opening a door at such a crucial point in human rights history.

On the occasion of this commencement, I want to take just a few minutes to briefly review with you who are going forth into the noble profession of the law, a very simple lesson that has flowed from the telephone call Dean Robinson made to me.

Basically, it is the importance of being open to meet a new challenge ... a challenge that may not appear to be in your game plan.

When I prepared for my first trip to South Africa, I had never considered becoming involved in the South African struggle. Yet, upon my arrival in that country I could not avoid noticing the similarities existing between the efforts of black people to lift the yoke of apartheid from their necks and the efforts led by Charles Hamilton Houston, Thurgood Marshall, Donald Hollowell, one of the great warriros, the NAACP and their allies to do the same thing here. The horrors of the existence of people of color under apartheid, and the way they reached out to me, as well as their resolve to free Nelson Mandela and end apartheid were gripping.

I made many trips to that country, striving to offering hope and in so doing, pointing out the way in which the United States moved from a slave nation where black people had no rights that whites were bound to respect to one, thanks to the brilliance of the small cadre of lawyers following and refining Houstonion jurisprudence, that overturned Plessy vs Ferguson in 1954 and came to theoretically guaranteed equality of opportunity to all.

You saw the outpouring of millions of South Africans march for miles to the polls in 1994 and wait for hours in boiling sun to vote. South Africa is now free. There is a Constitution and a government headed by one of the most remarkable figures of all time, Nelson Mandela. There is a new Constitution, approved one week ago. The features of the American Constitution, – Bill of Rights – Power of Judicial Review – guarantees against racial, religious and now gender discrimination – that the Houstonian lawyers perfected, are deeply embedded in that document.

As that has occurred in South Africa we find the interpretration of the United States Constitution, specifically the 13th and 14th Amendments, being turned on its head. Those two amendments explicitly provide for their guarantees to be enforced and given effect, where necessary, through the enactment of appropriate remedial legislation. After much struggle and travail, that has been done by executive action known as affirmative programs, supplemented by consent decrees and court orders.

During this season those remedial iniatives are being drawn into question. American Courts are now being asked, and some are responding, by ruling that to the extent that race factors are present in those remedial plans and schemes, whether for jobs, promotions, school admissions, set asides or voting rights, that they must meet a standard of strict scrutiny. More and more courts are holding that ridding this nation of the scourge of historic, systemic racial discrimination, is no longer a compelling public obligation. This change, coming as it does during the 100th anniversary of Plessy vs Ferguson, a decision that made the nation color conscious, is based on the assumption that the nation is now color blind.

The apparent political currency in such a notion stems, in part, from the fact that some persons, particularly lawyers, fell asleep at the switch. and allowed the public's sense of history to become warped. Perhaps it is now time for American lawyers to borrow a leaf from the book of South Africa lawyers and their emerging body of constitutuional jurisprudence that is developing under that country's new constitution. Lawyers and that country's new Constitutional Court are reminding the world, once again, of what a Constitution is for and how it must be used. This is a lesson that is coming none too soon.

The South African Constitutional Court is vested with the same power as our United Supreme Court is with respect to interpreting the Constitution. It has lost no time in dealing with the issues presented to it. I have been provided with copies of judgments of that court by one connected with it. One example. During its first term after being constituted in 1994, the eleven-member court unanimously struck down the death penalty. It was hailed as the most important decision since South Africa became a democracy. The public reaction has been nothing short of fierce.

That decision came amidst the highest murder rates of virtually any country in the world, thieves who kill and rape as part of their modus operandi. Car jackings are now up 25%, according to a South African with whom I am in correspondence.

People live behind barbed wire, hire private security firms and arm themselves.

In anticipation of an uproar over its death penalty decision, the Constitutional Court stated in its decision, what our Supreme Court stated in the Cooper vs Aaron, the Little Rock School desegregation case in 1957:

·      It is for the Supreme Court to say what the Constitution means;

·      if public opinion were to be decisive, there would be no need for the Constitution;

·      it is not often necessary to protect the popular – it is often imperative to protect the unpopular.

My friend, Judge Louis Oberdorfer of the District of Columbia District Court, called on Judge Cranch's words to make the same point about our basic charter – that the Constitution was made for times of commotion.

The second lesson I wish to leave with you is this simple one: if the long struggle to gaurantee equal rights for Black Americans is to be redeemed, and the hard won remedies designed to rid American institutions of the Plessy vs Fergusonstain, a new generation of Charles Houstons, William H. Hasties, Thurgood Marshalls, and yes, Donald Hollowells and Bill Robinsons must emerge. This new generation of creative, courageous legal and social engineers must have a sense of history and mission. And they must be open and responsive.

Your legal education at this wonderful law school under the deanship of Bill Robinson and the tutelage of this extremely talented faculty, along with your life experiences, have prepared

you to do many noble things. Of all that you have learned, I hope two of them are to hear the call when it comes, and respond to it.

There is a nation to save. It is your duty, as lawyers and as human beings, to strive to save it.