Past as Prologue: The Section of Individual Rights and Responsibilities at Forty Years

Vol. 34 No. 1

By

Michael S. Greco, a partner with K & L Gates in Boston, served as ABA president from 2005 to 2006 and chair of the Section of Individual Rights and Responsibilities from 2000 to 2001.

As we reflect on accomplishments to date and identify challenges ahead for the Section of Individual Rights and Responsibilities (IRR) forty years after its establishment, we also have the opportunity to measure our current work against the Section’s founding principles and the examples set by its many distinguished leaders and members.

Over the past four decades, IRR has become to many the “conscience” of the American Bar Association (ABA) and, in a broader sense, the American legal profession. While this description is certainly apt, it is incomplete. It does not fully convey the degree to which the Section has been not only the progenitor of ideas but also the primary mover, organizer, and unifying force behind policies and programs that have had a profound impact on the rights and liberties of all Americans.

From the beginning, this Section has attracted leaders and doers. Since the earliest years, despite the Section’s modest size and resources, many dozens of Section members have greatly influenced the ABA’s direction and core values through service in the ABA House of Delegates and Section and other ABA leadership positions. In the last decade, that leadership record has reached new heights, with three past Section chairs elected as ABA president.

IRR Policy Initiatives

Over time, the Section itself has become a leader, particularly in policy development and issue advocacy. It is now one of the most prolific and successful policy-generating entities within the ABA. Of approximately 250 IRR-sponsored policy recommendations brought to a vote in the House of Delegates since the Section introduced its first proposal in 1968, some 230—more than 90 percent—have been approved. In the last fifteen years, the Section has not lost a single House vote, even on such challenging issues as the call for a death penalty moratorium, continuation of affirmative action, and due process rights for all in our post-9/11 world.

The adopted policies cover a broad range of issues, from civil rights to the legal rights of people living with HIV/AIDS, but they all reflect the Section’s steadfast mission of promoting equality for all under the law and adherence by all—including our own government—to the rule of law. Many of the IRR recommendations have been ahead of the times, helping bring about significant advances in law and policy as positions once controversial have gained wide acceptance. Others have reaffirmed long-established fundamental rights under attack.

House-approved policies have intrinsic importance as consensus statements of the ABA’s 414,000-plus members, but it is through concerted advocacy that those policies have affected federal, state, and local laws and practices. Section leaders and members have played invaluable roles in advancing the association’s principles and policies in Washington, D.C., and across the nation. By speaking out within the ABA to address critical concerns outside the ABA, the Section has been instrumental in the continuing struggle to protect rights and achieve greater justice.

IRR also has drawn upon ABA policies, often those it originated, to support dozens of amicus curiae briefs filed in the ABA’s name in seminal U.S. Supreme Court and appellate court cases involving civil rights and individual liberties. Recent Section-developed amicus briefs have addressed affirmative action principles; rights under the Americans with Disabilities Act; discrimination based on sexual orientation; due process, effective assistance of counsel, and habeas corpus issues in capital cases; and enforcement of Bill of Rights guarantees and international treaty obligations, among other issues. Although many other advocates have shared their concerns in these cases, it makes a difference when the highly respected ABA, a nonpartisan body of members of diverse backgrounds and views, weighs in on an issue on which those members have found common ground through adopted policy. Court decisions that reflect arguments and positions advanced in ABA amicus briefs are an additional confirmation of the importance of the Section’s mission and the value of its work within and outside the ABA.

A Section That Works

At the core of the Section’s accomplishments are its committees, through which the Section brings to bear its members’ extraordinary range of expertise in protecting and advancing the civil and human rights and civil liberties, as well as concerns more specific to the elderly; people of color; children; immigrants; people with disabilities; women; and gay, lesbian, bisexual, and transgender people in the criminal and civil justice systems. The Section’s AIDS, death penalty moratorium, and Bill of Rights projects, all born of earlier Section policy and committee work, advance the Section’s achievements in several key areas of longtime concern to the Section.

As the articles in this issue describe, however, the impact of the work of IRR, its committees, and its projects is not limited to the concerns or rights of one or more segments of our population. In fact, far from advancing so-called special rights, our work serves to promote equal justice for all in our society and helps ensure that our Bill of Rights, laws, and jurisprudence are expansive and inclusive, not exclusionary. This principle is central to our goals, as it was to our founders’ vision. As our founders did, we know that every one of us is likely, at some point in life, to find ourselves in the minority—of opinion, political affiliation, religion, race, ethnicity, gender, or another factor. The Constitution protects the rights of the minority. IRR works to protect the Constitution and those under its protection.

In August 2005, in my inaugural remarks as ABA president, I made this observation to the members of the ABA House of Delegates:

‑The lawyers who have been responsible for monumental change in America did not assume that someone else would bear the burden, that someone else would confront the challenge, that someone else would advance civil rights, that someone else would uphold the rule of law, that someone else would defend our freedoms. Instead, those lawyers knew that what they did not value would not be valued, that what they did not change would not be changed, and that what they did not do would remain undone. In this momentous time for our profession and our country, America’s lawyers must again answer the call.

I am honored to be in the company of Jerry Shestack and Martha Barnett as past Section chairs who have served as ABA president and to be a colleague of the thousands of Section members who have preceded us, and will follow us, to answer that call.

As ABA president, and previously as Section chair, when I considered committing ABA resources and energies to a proposed initiative or activity, I did so in light of this question: does the issue advance the rights and liberties guaranteed under our Constitution? Our profession and our nation now face unprecedented challenges to protect our cherished rights and liberties. From our government’s secret electronic spying on people inside the United States to its disdain for the separation of powers doctrine, from denial of access to civil justice to a U.S. population that now includes fifty million poor, to the dangerous blurring of the long-standing line separating church and state, we and the Section have many challenges to meet in the coming years. We must do so with every ounce of our resolve.

In its first forty years, the Section of Individual Rights and Responsibilities and its legions of dedicated members have demonstrated that we are up to the task. I look forward to standing shoulder to shoulder with you in the years and battles to come.

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