The briefs filed in McDonald v. City of Chicago have raised a lot of questions here about the role of originalism versus stare decisis in constitutional interpretation. Some have argued that stare decisis must give way to correctness on these issues as a matter of constitutional purity: We should always follow the original public meaning of the constitution, the argument goes, whether we think that interpretation is good policy or bad policy or whetever the reliance interests interrupted by doing so.
Here’s my question for readers who take this view: How do you interpret the Sixth Amendment right “to have the Assistance of Counsel” in criminal prosecutions? The right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials. Defense attorneys were banned for fear they would focus the jury on technicalities, not guilt or innocence. The core concept of a criminal trial at common law was that the defendant would be forced to testify without preparation or counsel, and that the jury would be able to distinguish a lying defendant from a truthful one directly without a lawyer getting in the way.
By the time of the framing, the English practice had been changed and criminal defendants were allowed to bring an attorney if they had hired one. The Sixth Amendment then recognized that right as the right to have the Assistance of Counsel. However, my sense is that this was originally understood to mean the same as the English right: It was a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge (and one who had to do a constitutionally effective job). That’s my sense, at least; I am the first to admit that the history here is sparse. The history is sparse in part because federal law provided by statute that counsel should be appointed in criminal cases, at least capital ones. It is also sparse because no one really wants to go back to the old rule, so no one is invested in looking more closely at the question. But as far I can tell, the idea that the Constitution provides a right to the appointment of counsel that the defendant doesn’t have to pay for arose in the 20th century.
Specifically, inPowell v. Alabama, 287 U.S. 45 (1932), the Supreme Court stepped into save the “Scottsboro boys” from an outrageous injustice that the entire country was watching. In dicta, the Court added a section indicating that at least in that particular case, the Due Process clause would required the state to provide counsel to the defendants:
If opportunity had been given, to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. To hold otherwise would be to ignore the fundamental postulate, already adverted to, ‘that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.’ Holden v. Hardy, supra. In a case such as this, whatever may be the rule in other cases, the right to have counsel appointed, when necessary, is a logical corollary from the constitutional right to be heard by counsel.
A few years later, in Johnson v. Zerbst, 304 U. S. 458 (1938), the Court recited language from Powell and quoted an unrelated case that was in turn reflecting on state criminal justice policy, in a way that made it sound like the Sixth Amendment required the affirmative appointment of counsel paid for by the government:
Consistently with the wise policy of the Sixth Amendment and other parts of our fundamental charter, this Court has pointed to ” . . . the humane policy of the modern criminal law . . .” which now provides that a defendant ” . . . if he be poor, . . . may have counsel furnished him by the state . . . not infrequently . . . more able than the attorney for the state.”
Years later, in Gideon v. Wainright 372 U.S. 335 (1963), the author of Zerbst (Justice Black) then cited Zerbst for the following statement about what the Sixth Amendment provides:
We have construed [the right of Assistance of Counsel] to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived.
As a matter of precedent, that mostly settled the issue. As far as I know, no one really wants to go back to what seems to be the original understanding that assistance of counsel means counsel only if you can afford it. That sounds totally neanderthal. It would be bad, extremely bad.
So here’s my question: If you are a pure originalist concerned only with getting it right, and you believe stare decisis has no role at all, how do you interpret the Sixth Amendment right to assistance of counsel? Let me break it into two questions. The first is the most interesting: If you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, and somewhat less interesting for my purposes: do you agree that this is the original public understanding?
yankee says:
Is your question aimed at original public meaning or original expected application? It seems more like the latter than the former, though the line between the two has always been blurry.
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November 24, 2009, 4:03 pmJRL says:
If you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding?
Yes.
And second, and somewhat less interesting for my purposes: do you agree that this is the original public understanding?
Yes.
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November 24, 2009, 4:08 pmJRL says:
I should clarify that I would take the original meaning to limit the attorney to one that you have hired. That is, someone else could have hired him for you. As long as you consent to the representation, that should be sufficient.
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November 24, 2009, 4:15 pmwlpeak says:
The course of expediency is not the same as the rule of law. If there exists such a clear-cut modern preference to set aside a clear-cut constitutional meaning, then change the damn constitution. Why is this so hard for some to understand?
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November 24, 2009, 4:17 pmPatHMV says:
My suggestion, on the general question, is that original understanding be restored by the same process that established it, incremental change in the application of the rule to new circumstances. You need not (and should not) out of the blue just overturn a rule which the country has come to rely upon for the past 20 or 30 or 50 years. But you can (and should) decline to expand it, and in fact contract it a bit from time to time.
For example, in a case where there was a technical violation of right-to-free-appointed-counsel, the Court might examine the matter and determine that, in this specific case, “the necessity of counsel was NOT so vital and imperative that the failure of the trial court to make an effective appointment of counsel was [] a denial of due process within the meaning of the Fourteenth Amendment.” In so doing, the Court would not need to determine “Whether this would be so in other criminal prosecutions, or under other circumstances.” This would, I suppose, nominally overrule Gideon, but would return us to Zerbst, and allow the rule to be considered on a case-by-case basis.
Not that I would support a major policy change in this matter. I wouldn’t necessarily mind, however, removing free-appointed-counsel for minor offenses, if that would allow resources to be freed up to provide much more adequate defense counsel in capital and other serious cases.
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November 24, 2009, 4:17 pmAndrew Hamilton says:
My answer is that the language of the Sixth Amendment does NOT limit the right to counsel, but that the proposed “originalist” interpetation does limit it, and thus is at odds with the plain language of the text. If the Founders meant “only in the case that the defendant can procure counsel,” they did not say it, and so they left open the door to a view of this “right” that requires the state to furnish counsel if necessary.
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November 24, 2009, 4:26 pmPubliusFL says:
I agree with JRL, at least on the first question. I hesitate to give a definite answer to the second question, because I am unfamiliar with the evidence regarding the original public understanding beyond what is stated in this post.
While I do agree that the courts should return to the original understanding of the right to assistance of counsel, I think it would be insane for any legislator to propose defunding public defender officers for that reason, and would probably support a constitutional amendment providing for appointed counsel for the indigent.
The results of this informal survey should be interesting with respect to the often-made claim that originalism fails in its claim to be more objective than other methods of constitutional interpretation because originalists magically arrive at the conclusion that the original public understanding of any particular constitutional provision happens to agree with their preferred policy outcome.
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November 24, 2009, 4:26 pmsecond history says:
You need not (and should not) out of the blue just overturn a rule which the country has come to rely upon for the past 20 or 30 or 50 years. But you can (and should) decline to expand it, and in fact contract it a bit from time to time.
This is one of the most annoying things about SCOTUS rulings. Either the prior rulings were wrong, and should be overturned immediately; or they are correct and should be left alone. Incremental, case by case, changes only serve to clog the courts with “but my case is different.” Gideon, Zerbst, and the dicta in Powell should be flat-out repudiated. While everyone has the right to counsel in federal courts, no where does it say the public must pay for it.
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November 24, 2009, 4:28 pmjrose says:
In all criminal prosecutions, the accused shall [...] have the Assistance of Counsel
It seems to me a texualist would have to conclude the right to counsel applies whether or not you can afford one.
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November 24, 2009, 4:37 pmGabriel McCall says:
If you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, and somewhat less interesting for my purposes: do you agree that this is the original public understanding?
I think there’s an argument to be made that even if the sixth amendment originally only guaranteed a right to secure one’s own council, that the fifth and fourteenth amendments’ guarantees of due process of law, in the context of an adversarial justice system, demand the provision of an advocate for the accused to counter the prosecution’s advocacy for conviction.
However, to answer your questions specifically as asked, YES, if the original meaning of the sixth amendment was only the right to secure one’s own council, then courts should discard precedents based on any other interpretation. In this specific matter, though, the right to a public defender should immediately then either be rediscovered in some other constitutional clause or secured through new legislation.
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November 24, 2009, 4:39 pmthe federal white collar criminal says:
Given what a mess the Supreme Court’s jurisprudence in the right-to-counsel area is (I’m including “ineffective assistance of counsel” cases) and given the general agreement that indigents getting counsel is a good thing, it seems like a well thought out amendment would be the preferable option. Something that was relatively simple but cleaned up the law in this area could probably attract a fairly broad base of support. (I suppose you have to get over the “amending the bill of rights” cringe, though why that would be more sacrosanct than the original constitution I don’t know, but as long as you used a word like “construed” instead of “repealed” I think it could get by. (See Eleventh Amendment.))
Failing that, it seems like FRCP 44 moots the basic question, as do many adequate state laws. Probably better to shore up those and never reach the constitutional question again.
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November 24, 2009, 4:40 pmMatthew Carberry says:
Is the shall enjoy applicable to “to have TAoC” directly or merely to “the right [...] to have TAoC”?
With the latter reading we’re back to defining the scope of the “right to TAoC” itself.
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November 24, 2009, 4:50 pmPubliusFL says:
Hmmm. Textually, the right to keep and bear arms is not explicitly conditioned on one’s ability to afford a gun either. Perhaps I should put my next one on a credit card and send the feds the bill. ;)
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November 24, 2009, 4:51 pmDavid Newton says:
What is more important? Is it the preservation of stare decisis or is it the preservation of the original meaning of the constitution? I would observe that since stare decisis in constitutional cases is supposed to flow from the original meaning of the constitution then in all cases the answer must be that stare decisis which conflicts with the original meaning of the constitution should be overruled as incorrect. However until and unless it is overruled it is still good law.
Quite the thorny issue where theory and practice have a large gap between them.
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November 24, 2009, 5:02 pmgullyborg says:
This. I do not know if your interpretation of the original intent of the Sixth Amendment is correct or not. However, if we assume for this discussion that it is, then the only correct rule of law is to abolish the erroneous precedent, follow the actual intent of the Sixth Amendment, and — if the people believe it is good policy to do so — amend the Constitution again to specify the right to counsel includes appointment of counsel if you cannot afford your own.
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November 24, 2009, 5:06 pmThales says:
Orin:
In my view, a good rationale for the difference in treatment between the Gideon (and predecessors and progeny) “postive rights” view of the Sixth Amendment and the generally “negative rights” character of the rest of the Bill of Rights is that in the case of the criminal process, the government itself is the creator of the process’s complexities and power, and we’re a long way from the simpler times of the common (criminal) law. Since it’s pretty clear that the extent of federal (and state) criminal law and process by the time of the 20th century had gotten more powerful and complex than that contemplated by the “original public meaning” of the federal constitution’s provisions dealing with criminal law, I think it’s defensible to make it a requirement of basic fairness that when placed against the power of the state an indigent defendant will have state-funded competent counsel at his disposal. I think it’s hard (and clause-bound) to answer a meaningful question about the original public meaning of the 6th amendment in complete isolation from these other developments–it seems distinctly possible that the Bill of Rights’ ratifiers in 1791 simply did not think about whether the right would be both negative and positive. Also relevant, I would think, is the original public meaning of the 14th Amendment when dealing with both (criminal proedural) due process and incorporation of the 6th amendment to apply against the states. Don’t ask Aldridge about this unless you want to be at the bottom of an organ transplant list.
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November 24, 2009, 5:12 pmnice strategy says:
To put things into proper original context, I would like to know how expensive hiring an attorney was at that time in relation to the resources available to lower-class defendants. I would predict that cost was less of a barrier at that time, even to the poorest defendants, than it is today. If true, the changing interpretation of the 6th amendment could be seen as true to the original intent — providing justice. Yes, it’s specific purpose is to further the ends of justice by ensuring that the State could not prohibit defense counsel. If, at the time, defense counsel was universally available (not free, but basically affordable), restraining the State would have the effect of ensuring that defendants had counsel unless they chose to represent themselves. Was that effect intended? I would think yes. (I also think that it need not have been intended for the current interpretation to be legitimate, but I read the post as hoping not to re-litigate originalism and I’m trying to respect the post’s original intent).
The original principle here is the right to a fair trial. The public pays for the court, the judge, the support staff, the police, and the DA. The Constitution does not specifically require the public to pay for these things, but private financing of them is nonsensical from a due process point of view. The above quote does not reconcile the right to a fair trial against the de facto impossibility on the part of many to afford representation.
Perhaps a defense attorney isn’t required for justice; I’m skeptical, particularly given the increasingly complex nature of evidence in modern times.
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November 24, 2009, 5:12 pmmatth says:
(To answer the questions: I’m a textualist, not an originalist, but I would overrule the right-to-government-provided counsel cases. Orin’s statement of the original understanding is consistent with my, not-at-all-informed, view.)
I’m not sure what this sort of question shows, though. Institutions have a way of catching up with social evolution. When the Court steps in, it displaces other players. Today, it seems unthinkable to not provide lawyers for those accused of serious crimes. But precisely because it’s so unthinkable, I’m fairly confident the other branches of government would step into the gap.
More broadly, it seems to me really difficult to tell whether a judicial philosophy is a good thing or a bad thing, pragmatically, because there are so many dependencies. An originalist who really values the modern right to counsel will say, “Yes, it sucks that poor people don’t get lawyers, but the world would be a better place for everyone, rich and poor alike, if originalism were more widely adhered to. Courts would have curtailed the federal war on drugs; affirmative action could have been widely exercised without judicial interference, the ERA would have been ratified, etc.” (Or whatever: fill in your pet originalist missed opportunities.) It’s really hard to say whether all the changes would be good or bad on net.
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November 24, 2009, 5:14 pmMark Field says:
Nit pick: at common law, a defendant was not permitted to testify. See, e.g., US v. Looper, 419 US 1405 (1969): “The ancient incompetency of a defendant to testify in his own behalf has been completely altered in the modern era.”*
Over at Balkinization, Dilan Esper suggested another good challenge to originalism:
“So now the Supreme Court declares the Fed unconstitutional, and a bill is quickly prepared in Congress to enact banking regulations in the Fed’s place.
1. In the meantime, are the Fed’s regulations still binding? Or is the banking system suddenly unregulated? And if it’s the latter, won’t there be a financial meltdown before Congress can act, per Gresham’s Law?
2. Congress enacting banking regulations is going to be a mess, with lobbying, filibuster threats, ideological gamesmanship, partisanship and obstruction, and everything else. It’s hard to believe that Congress could produce anything in that environment, and it’s even harder to believe that anything Congress produces is going to inspire the confidence necessary to keep the banking system from melting down.
Of course, you could avoid this by doing what Warren did in Brown II, essentially allowing the integration process to proceed very slowly. But I would argue that this sort of prophylaxis is subject to the exact same objection as stare decisis, i.e., that if you allow it, you are ignoring the text of the constitution in pursuit of protecting societal reliance interests. I don’t see how one can be proper if the other is improper.
Look, Bart, there’s a lively debate about how appropriate stare decisis is in constitutional decisionmaking. But you can’t wish the problem away. Transitioning to the constitutional interpretations that you favor would impose crushing transition costs, and you simply are acting oblivious to them.”
*This was the first cite I found; there’s probably a better one.
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November 24, 2009, 5:15 pmJiffy says:
The OP appears to make the questionable assumption that most fans of originalism would have concerns about denying indigents a constitutional right to counsel.
Maybe a better way to make the point for many originalists is to ask whether they would be in favor of reversing cases such as Adarand that strike down race-based affirmative action if they agreed that the original understanding [or: insert your particular brand of originalism here] of the 14th Amendment Equal Protection Clause was to improve the welfare of former slaves, not to achieve “colorblindness.”
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November 24, 2009, 5:25 pmD.R.M. says:
Going to what I believe is the intent of your question, not the meaning, there was no constitutional obligation of the state to provide a state-paid attorney, and the precedents that say there is should be overturned.
However, let us be clear that the right to an attorney is not limited to cases where “you hired one”. The right still adheres if your attorney is provided to you for free, regardless of who (if anyone) is paying for the attorney.
(I could see an argument that if the state provides free counsel [which it would not be obligated to do by the Federal Constitution], there would be an obligation that the counsel provided by the state be competent/effective. The temptation to the state to provide inferior state-paid counsel in order to crowd out private efforts at providing pro bono legal assistance would need guarding against.)
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November 24, 2009, 5:26 pmegd says:
This is deliberately disparaging the “no right to have government-provided lawyers” side. I get emails on a weekly basis asking for attorneys to help indigent plaintiffs or defendants, so I don’t see why this system wouldn’t work for criminal defendants.
From a textualist perspective, the term “right” is clearly used throughout the Constitution in the negative sense. Rights are used to denote limitations on government, not affirmative powers of the Government. Instead, the Constitution uses the term “powers” to define what the Government may do.
Even if the right to (effective) government-provided counsel is guaranteed under the Sixth amendment, then Congress still has no authority to pay for the service.
Even assuming authority to spend is subsumed under the power “[t]o constitute Tribunals inferior to the supreme Court” power, Congress’ police power is very limited. The need for counsel would therefore be very limited, not requiring a great outlay of the people’s funds.
In conclusion, if Congress is willing to withdraw their police powers to the Constitutional limitations, I would be willing to support counsel (in Federal cases) paid for by the Federal Government.
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November 24, 2009, 5:29 pmThales says:
edg: From a purely textualist perspective, I think it’s simply ambiguous whether the usage of the phrase “right . . . *to have* the Assistance of Counse” describes a purely negative right, purely positive right or both liberty and entitlement. So your context argument is a good, but not dispositive one, in favor of a purely negative reading; I think the nature of the criminal process then and now, and the unique need to which this right is directed argue in favor of a potential positive read as well. I think Orin is right to look to original public meaning as a source of interpretation where the text is ambiguous. But to take another textually ambiguous portion of the Bill of Rights, in the eighth amendment, does “cruel” mean, cruel in fact, cruel as measured by what someone (the judge, the people, who?) subjectively believes to be cruel, and is it frozen in time by the beliefs of the 1791 crowd, and if so why? How do we know that the original public meaning (or if you prefer, original intent) was in all cases to follow the original public meaning/intent?
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November 24, 2009, 5:44 pmMark Field says:
Here’s a better cite on the common law ban on defendants testifying: Ferguson v. Georgia, 365 US 570 (1961).
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November 24, 2009, 5:45 pmD. Doorninck says:
Originalism and the American Bill of Rights 6th Amendment “to have the Assistance of Counsel”
Orin Kerr
November 24th @ 4:00 p.m.
“The core concept of a criminal trial at common law was that the defendant would be forced to testify without preparation or counsel, and that the jury would be able to distinguish a lying defendant from a truthful one directly without a lawyer getting in the way.”
That is nonsense.
King’s Pleas Common Law Courts, or criminal courts, are not:
Common Pleas Common Law Courts, or civil courts
Neither are they:
Exchequer of Pleas Common Law Courts, or revenue courts
Criminal courts do not have defendants or respondents, or plaintiffs.
Civil courts and revenue courts have defendants, respondents, and plaintiffs.
Criminal courts have accusees, prisoners, and prosecutors.
In a criminal court the prosecutor must prove the accusation or charge beyond a shadow of a doubt.
There is not the slightest need for the accused or prisoner to give any evidence, and in fact he is not
allowed to under Common Law as “No man may bear witness against himself”.
There can be no objection to an accused or prisoner calling witnesses to give evidence on his behalf,
or to have an attorney or barrister present in the courtroom, but any such evidence or lawyers seem
pretty much a waste of time.
Because the whole basis of criminal law remains the same. The King (or Queen) or prosecutor must prove the King’s case or state case beyond a shadow of a doubt all on his own. No one, not even the
accused, is allowed to either help the prosecutor or hinder the prosecutor.
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November 24, 2009, 5:51 pmJohnF says:
Orin,
You implicitly and various commentators explicitly suggest that it is a logical flow from having the right to bring a lawyer to the right to have the government provide one. This confuses the wording of the Constitution with what may or may not be morally desirable.
First, I do think the right-to-counsel precedents were wrong and should be overturned and that there is nothing wrong with trusting the various legislatures who care about the issue to deal with it.
Second, is there the slightest evidence that when adopted the amendment was understood to confer a right to a government-provided lawyer? Not that I’ve seen. That seems to answer the second question.
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November 24, 2009, 5:52 pmdcperson says:
this seems like a post suitable for Aldridge’s bingham if I’ve ever seen one...I’m a bit saddened by the missed opportunity.
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November 24, 2009, 5:57 pmAndrew says:
“In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence.”
That certainly leaves a lot of leeway for the courts to flesh out what exactly it means. The “original intent” may not have been to require the state to pay, but the “original meaning” of the actual words does not say one way or the other.
The Court seems to have been on very solid ground in interpreting the Clause the way they have done. As for applying it to the states via the 14th Amendment, I have no problem with that either.
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November 24, 2009, 5:57 pmOrin Kerr says:
Mark Field,
If I understand the history correctly, the common law rule was that defendants were required to testify, but they were not allowed to take the oath. That is, they had no privilege not to take the stand, but they also were not allowed to assure the jury they were telling the truth by taking an oath to do so. So there wasn’t a ban on defendant testimony, just a ban on oath-taking.
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November 24, 2009, 6:00 pmOrin Kerr says:
No, I’m not: Actually, the point of the post is that there is a difference, and I want to see how many pure originalists will stay true to their principles.
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November 24, 2009, 6:02 pmAnon321 says:
I also wonder: if you believe that the original meaning of the Constitution should trump case law, does that apply at all levels of the judiciary, or just to the Supreme Court? In other words, do you have any problem with a district court judge directly disregarding Supreme Court precedent on point and applying his own conclusions about what the original understanding of the Constitution was?
Could a district court judge (or a state court judge, for that matter) impose a death sentence on a mentally retarded juvenile if he decided that the cases barring it were inconsistent with the original understanding of the Eighth Amendment?
Could a district court judge grant habeas relief on the grounds that the petitioner was not indicted by a grand jury — as required by his view that the original understanding of the Fourteenth Amendment mandated full incorporation of the Bill of Rights — even though the charging process fully complied with state law?
Or imagine a situation in which a district court judge agrees with Raoul Berger’s analysis of the original public meaning of the Privileges or Immunities Clause, but a majority of the circuit in which he sits agrees with Akhil Amar’s analysis? Should the district court judge keep dismissing claims based on constitutional violations by state actors, and should the circuit court keep reversing him, ad infinitum.
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November 24, 2009, 6:09 pmjrose says:
Textually, the right to keep and bear arms is not explicitly conditioned on one’s ability to afford a gun either
As others have pointed out, that is explictly a “negative right” (shall not be infringed) which limits, but does not positively compel government. In contrast, the 6th reads like a list of “positive rights” that the government is compelled to provide. For example, is an impartial jury only something government cannot prevent, but is not required if the accused is unable to round one up?
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November 24, 2009, 6:13 pmaf says:
I want to see how many pure originalists will stay true to their principles.
Not surprisingly, a lot of anonymous commenters are willing to stick by their principles.
The harder question is whether any reputable academic originalists would do so — or any purportedly originalist judges.
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November 24, 2009, 6:17 pmAndrew says:
Well, I’m not anonymous, I believe in going by the Constitution’s original meaning, and I believe the Court has not transgressed the original meaning here. Maybe they’ve transgressed the original intent or the original expectations, but not the original meaning, IMHO.
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November 24, 2009, 6:26 pmRyan Waxx says:
I think that this is a case much like “All men are created equal”. Our founding documents were quite clear if you read the actual text... but it took us quite a while indeed to live up to it and actually grant equal rights.
Similarly, you can either look at the literal words of the clause itself...
“In all criminal prosecutions, the accused shall enjoy the right... and to have the Assistance of Counsel for his defence.”
So, the text clearly said one thing but people interpreted it to mean something they wanted it to mean. It would hardly be the first time in the constitution’s history that that happened.
Hence, no form of originalism requires us to remove defense for the indigent any more than it requires us to return blacks to their set of rights back when the amendment in question was written. But take heart — surely, there are other ways to try and trip up and discredit people who want to stay as faithful as possible to the original contract. I’m sure you’ll find a way if you keep trying.
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November 24, 2009, 6:29 pmtroll_dc2 says:
This seems correct to me. But I also have seen the phrase “original understanding.” So what is the correct concept of originalism?
Original intent suggests that we can know what someone (the drafters? the ratifiers?) thought. It attempts to be an objective report of subjective thinking.
Original (public) meaning suggests that the scope can be determined by looking at history, context, and language. Is history always entirely relevant and correctly recounted? Is context always clear? Is language ever ambiguous?
Original understanding suggests that there was a consensus (among whom?) as to what was included and what was not.
I have nothing against trying to figure out what the drafters thought that they were doing, but you are nuts if you think that a pure focus on “originalism” can, in all situations, be objective and will yield clear results.
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November 24, 2009, 6:39 pmDonald Kilmer says:
Answer to question #1: The “shall have” language seems pretty compelling. That being said, I am not sure that the institution of a public defender is the only remedy. I can see a jurisdiction that provides for fee-shifting in criminal cases as being in accord with the Sixth Amendment. (e.g., Guilty verdict, you pay your own attorney. Not-guilty, and the government pays your attorney {hopefully from the D.A.‘s budget}. This leaves the problem of what to do with indigent guilty people.)
Answer to question #2: I don’t know.
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November 24, 2009, 6:41 pmAnon321 says:
No form? It seems that a lot of commenters are taking the position that the original semantic meaning of the text is consistent with the modern interpretation of the clause and that therefore there is no conflict in this case between originalism and case law. This is basically the Jack Balkin model of originalism: we apply the text based on what the words meant to the people who ratified them; however, while we might consider how those same people expected the words to be applied to certain situations, those expected applications are not binding on us.
It’s important to note, though, that most originalists reject this as a faux originalism that might as well be repackaged living constitutionalism. There are many originalists who believe that we are bound by the original expectations of application of the ratifiers, such that if the ratifiers thought that the right to counsel did not grant an affirmative right to a state-appointed lawyer, then we cannot resort to our own interpretation of the text to find otherwise.
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November 24, 2009, 6:46 pmBob from Ohio says:
If you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding?
Yes.
Do you agree that this is the original public understanding?
Yes.
What other right anywhere in the Constitution requires the taxpayers to support one’s exercise?
Does the government have to buy you a printing press or computer? Or as joked above, a gun?
Of all the bad Warren Court decisions, Gideon was the worst. It is just a result oriented decision without any textual or historic basis other than the Court’s earlier bad decisions. The Scottsboro case was admirable in result but bad law.
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November 24, 2009, 6:51 pmtroll_dc2 says:
Bob, if you had been on the Supreme Court when Powell v. Alabama came before it, would you have ruled against the petitioners?
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November 24, 2009, 6:54 pmShelbyC says:
The right to a trial by jury? The right to due process?
Although I agree with the rest of your post...
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November 24, 2009, 7:10 pmShelbyC says:
To what extent should the right to assistance of council (of the defendant’s choosing) preclude some of the limits we now have on who can serve as council? If defentants weren’t limited to folks with three years at an accredited law school and who passed the bar exam, wouldn’t council be much more affordable, and wouldn’t the process be more geared towared folks with less legal education? Nowadays one of the main reasons council is so important is because we’ve deliberatly made it nearly impossible for someone without council to navigate the system.
Also, the question, as I understand it, is a tautology : “If you believe that original intent should prevail over starry decisis, and you believe that the original intent was not to make the state pay for council, do you believe the court should overturn the modern precedents?” I don’t see how the propositions can be true but not the result. If the question is really to test people’s principles, can’t someone who likes the modern precedents just say, “Yes, I believe that the precedents should be overturned, but I also believe that the Constitution should be immeadiatly amended to provide for payment for council?
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November 24, 2009, 7:26 pmJoe says:
Due process seems to provide help to originalists here even if the counsel provision on its own would not do the trick. The Powell ruling itself doesn’t merely rely on counsel but due process generally.
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November 24, 2009, 7:29 pmChristopher John Brennan says:
The due process of law was not publicly understood to require the government to provide counsel to indigent criminal defendants at any time up through the ratification of the Fourteenth Amendment.
However, the words “due process of law” refer to a broad principle which I believe was likely to have been publicly understood at the time of ratification to allow, even require, future generations to apply the ever more civilized standards that were expected to develop. This was a country that saw itself as dynamic and ever improving–there is every reason to think they understand the words as not limiting future generations to only those specific processes that currently existed.
This is not a “living Constitution” argument where words change their meaning. It is a hypothesis that the ratifiers in fact understood the words to allow the country to continue to improve itself in terms of how it applied that principle.
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November 24, 2009, 7:35 pmArthurKirkland says:
If we rigorously return to original understanding, my study of the Whiskey Rebellion indicates it was commonly understood that a proper response to poor performance by a public official involved tar, feathers, half a haircut and, sometimes, an official tied to a tree to arrange an unobstructed view of a house-burning.
Improper searches, prosecutorial misconduct, falsified police reports — penalizing such abuses of citizens and our Constitution with tar and feathers might be more effective and just than anything developed since the days when original intent and meaning were current intent and meaning.
If Gideon is bad law, prosecutorial immunity is positively anti-American.
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November 24, 2009, 7:35 pmSuperSkeptic says:
How do I interpret it now? Or how would I interpret it as an issue of first impression? I assume you mean ‘how do I interpret it now’ because we’re talking stare decisis.
Stare decisis is a prudential doctrine at its core, and shouldn’t trump a principled interpretation — if that can be accurately determined (in this case by the history, text, etc.). The logic that undergirds the doctrine of stare decisis is that we don’t really know which of two competing resolutions is right, so we should stick with the one resolved. Although I do think there is merit to the reliance interest counter-argument, if one could say with a high enough degree of certainty that some decision is constitutionally wrong — it’s gotta go. Now, of course, that calculus may be different for each person/judge, i.e., how the outcome will result for practical policy you favor and how you personally rationalize and characterize the relevant reliance interests and the certainty of history.
As an issue of first impression, if one could determine the original intent/meaning/text/history (don’t get distracted here), then I’d like to know by what authority a judge may deviate from that.
I imagine that this makes me not a “pure originalist.” I don’t think there is such a thing as a pure originalist, nor do I think that there is such a thing as a non-originalist. So, maybe I should have skipped right to the next set of questions.
If I agree with that, and it’s true, then Yes. Legislators would immediately fill in the gap. Which is, I think, rather telling; because it shows that the Court was legislating because of it’s impatience with the democratic/political branches. Some would say that this is okay or good using the counter-argument that the court is exercising the only available power against a sort of “market failure” in the democratic branches (at the time). But then there is the separation of powers. We’re back to EFFICIENCY or PRINCIPLE.
I don’t really know. But, without any more research, I’m leaning toward agreeing that it is the original understanding — otherwise how else could we have made it to the 1930s without such decisions?
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November 24, 2009, 7:47 pmMark Field says:
I see your distinction. I interpreted the word “testify” to mean “under oath”.
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November 24, 2009, 7:51 pmJoe says:
otherwise how else could we have made it to the 1930s without such decisions
The federal government provided counsel in such cases by statute while the federal courts did not apply the rights of the BOR to the states generally, so why would the matter really come up?
Anyway, various state courts as noted by Powell did hold it was required for due process as did various state laws themselves.
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November 24, 2009, 7:57 pmSuperSkeptic says:
Academics don’t matter, and only 9 judges do. From what I understand, only 2 of them feign originalism, maybe 4.
Agreed. In a perfectly rational and principled world, we’d see a legislative solution — yesterday; alas, the best we can hope for, it seems, is for an efficient scale-back by our super-legislature.
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November 24, 2009, 7:58 pmJoe says:
required to testify, but they were not allowed to take the oath
Curious. How does one “testify” without taking an oath? Isn’t it better to say they had no right to remain silent as such?
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November 24, 2009, 7:59 pmjimM47 says:
Since I haven’t seen this common argument mentioned yet: pure originalism and stare decisis (as I see the term used most often) are not incompatible. A pure originalist may support stare decisis when:
1. As a prudential matter when a question of interpretation is close enough that the concern for interpretive error in the second instance is just as great as the concern for interpretive error in the first instance.
2. As a solution to indeterminacy when two or more interpretations or constructions are reasonable, the one already adopted is kept.
3. As an evidentiary matter, a previous (wrong) decision may show a changed circumstance that alters the effect, but not the semantic meaning of a provision.
Others have mentioned the original-expectations vs. original-meaning/semantic-meaning distinction, the 1866-expectation argument, and the evolution-of-due-process-as-consistant-with-originalism argument, and I
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November 24, 2009, 7:59 pmnice strategy says:
OK:
I’m going to disagree with the premise here based on my admittedly incomplete education. I think it is possible to have an originalist orientation to the law, agree that the original “understanding” was as a right to have a lawyer present (that the government could not prohibit attorneys from representing clients in court), and accept the modern precedents as true to the intentions of the framers and therefore true to their stated legal philosophy. I think it is reasonable to distinguish between the original intent of the principle and the original understanding of its application, even if most originalists are not nearly so nuanced.
Maybe I’m being too generous to originalists in suggesting that some of them can put original intent at the forefront without dogmatically excluding other modes of interpretation and every historical development since the 18th century. I also believe that “rights” need not be classified as positive or negative; that’s a false dichotomy, and as others have pointed out, there are plenty of affirmative obligations of government in the Constitution, not just restrictions on its powers. Consider Habeas: the government lacks the power to suspend its positive duties to protect people from unrighteous incarceration by the executive branch.
In the present context, I believe that the original language was sufficient to address the original principle: people who want an attorney ought to have one, and thus, the original “understanding” of the 6th amendment as a limit on government was correct. The government’s positive duties to ensure a fair trial, several of which are plainly stated in the 6th Amendment, were once satisfied by non-interference in the realm of counsel. Now, an originalist ought to be able to admit that the governments positive duties under the Constitution are no longer always satisfied by non-interference because of social and economic changes, and hence, a new interpretation can be consistent with the principles of the old one.
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November 24, 2009, 8:02 pmSuperSkeptic says:
Joe, while I appreciate the information, because there was a statute involved mandating counsel in federal courts, it does not follow that it was constitutionally mandated, which is the issue. In fact, it leads to the opposite conclusion, i.e, that the constitution doesn’t mandate counsel (but merely permits) and thus a statute was required. And the Due Process issue is a red-herring; even if it does require it now under an evolving standards of decency interpretation, (to which I make no objections here) the issue is constitutionality under the Sixth Amendment.
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November 24, 2009, 8:05 pmJacob Berlove says:
No originalist right under the sixth amendment, but yes under the fifth and fourteenth. Due process of law can require more rights for defendants to counterbalance new government tactics. Ditto under the fourth amendment for the exclusionary rule in light of qualified immunity.
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November 24, 2009, 8:30 pmJacob Berlove says:
In other words, in light of the increased complexity of the rules of trial, process that was previously “due” and sufficient no longer is.
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November 24, 2009, 8:33 pmNathan Wagner says:
I have a difficult time seeing the trap of this post. Ostensibly it is to put originalists in a quandry: either abandon principle or else say that the Court should rule that the Constitution allows a result that by broad consensus is regarded as unjust.
But the very fact that there is such broad consensus virtually guarantees that, were the Court to make such a ruling, Congress would swiftly restore the requirement by statute or fresh amendment. No state legislature in the meantime is likely to do away with public defenders.
I think the only practical change that could come of the proposed ruling is that Congress may construct the new law or amendment in such a way as to enhance its power to discourage frivolous or dilatory appeals — a measure which would enjoy some public support. In this case the supposedly unjust ruling might ultimately result in a public good.
It is really impossible to trap originalists by suggesting that their reading of the Constitution would permit something broadly considered unjust. The very overwhelming consensus that declares the thing morally unjust also ensures that no government that has to face the people in elections is very likely to do the unjust thing.
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November 24, 2009, 8:45 pmBob from Ohio says:
Agreed, but why stop at police and prosecutors. Judges also have too broad an immunity.
No, they were denied the opportunity to communicate with their families so as to arrange counsel. That was enough to reverse, no need to require the court to appoint counsel.
Not to mention the reckless speed to judgment and the general ban on blacks on juries in the state.
The “broad consensus” is more confined to the legal establishment than the public or politicians.
On the contrary, I can think of several states that would speedily eliminate public defenders. Not all southern ones either.
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November 24, 2009, 9:39 pmNathan Wagner says:
Name them — and your evidence.
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November 24, 2009, 10:02 pmArthurKirkland says:
I would wager that Texas would eliminate public defenders. Is there any evidence that Texas has ever provided an iota of public defense more than that which has been court-mandated? I suspect it would be easy to find circumstances in which Texas provided less public defense than was required, at least until forced by a court to comply with its obligations.
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November 24, 2009, 10:17 pmnice strategy says:
I wish this were true, but judging by the demagoguery flying around about putting KSM on trial, demagoguery about “death panels,” fearmongering about terrorists escaping SuperMax prisons, and the general griping about “special rights,” I wouldn’t be so sure. Survey after survey shows that basic Constitutional rights are not supported by majority public opinion, and that many people default to guilty until proven innocent. Rick Perry is still in office despite his indifference to exculpatory evidence that led to the State murdering a citizen. Yawn.
Meanwhile, PD offices are wildly understaffed and under pressure to settle cases with a plea bargain.
State legislatures might not leap to abolish their PD offices, but it is easy to imagine some of them letting them languish and deteriorate further over time.
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November 24, 2009, 10:17 pmCornellian says:
Along similar lines, I’ve wondered what originalists think of the 7th Amendment’s guarantee of a right to trial by jury “where the value in controversy shall exceed twenty dollars.” Does that mean twenty dollars today or some sort of inflation indexed amount reflecting what twenty dollars was worth at the time of the adoption of the 7th Amendment?
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November 24, 2009, 10:23 pmDon Miller says:
According to the 6th Amendment, a defendent has the right to the Assistance of an Attorney.
I believe that you can return to text of the amendment, and have the spirit of modern jurisprudence.
Public defenders could be appointed to help a defendent prepare their case, but not represent them in court. Assist them in the preperation of their defense, filling out the right paperwork, becoming familiar with the procedures, stand by them in their appearances in court to answer questions. But the defendent would represent his/her self.
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November 24, 2009, 10:32 pmCornellian says:
If you are a pure originalist concerned only with getting it right, and you believe stare decisis has no role at all
The Founders undoubtedly contemplated a common-law style approach to interpreting the Constitution, and that included the principle of stare decisis (among many other things). Arguably, rejecting the principle of stare decisis is the bigger departure from originalism than accepting it and arguing about whether it ought to apply in a particular case.
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November 24, 2009, 10:45 pmDave N. says:
The Right of Allocution allows a defendant to make a statement to the Court without being put under oath.
It is a right at Common Law, under the theory that a defendant should not be condemned without the judge hearing the defendant’s voice.
Some states have limited the right. As the link notes, the California Supreme Court has held that allocution is subject to cross-examination, though in most jurisdictions it is not.
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November 24, 2009, 10:45 pmJiffy says:
I’m not disagreeing with this assertion, but can you point to any evidence for it? I’ve often wondered whether the methodology of originalism meets its own test of validity.
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November 24, 2009, 11:41 pmAllan says:
I have got. We can argue it both ways.
The original intent was that everyone charged with a crime was entitled to a lawyer. Since everyone charged with a crime was rich, everyone could afford and did have a lawyer or reputable lawyers volunteered their services. It even happened in To Kill a Mockingbird.
It was not until modern times that lawyers got so greedy, defendants so poor, and the amount of criminal prosecutions so vast, that there was a shortage of lawyers.
When that happened, the federal courts had to step up to the plate.
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November 25, 2009, 12:11 amSC Public Defender says:
@Nathan Wagner
Georgia,
From the NYT
“Legal aid groups say the budget cuts, coupled with Mr. Adams’s resignation, are signaling a return to darker days for poor defendants in need of representation in Georgia.”
and the Augusta Chronicle.
I wouldn’t say that we are tops on the legislative priority list in SC either.
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November 25, 2009, 12:21 amCornellian says:
The Founders undoubtedly contemplated a common-law style approach to interpreting the Constitution, and that included the principle of stare decisis (among many other things).
I’m not disagreeing with this assertion, but can you point to any evidence for it? I’ve often wondered whether the methodology of originalism meets its own test of validity.
To the extent the Founders had a legal education, it was in British common law. The Constitution is replete with terms (like habeas corpus) that assume a knowledge of the common law — they’re not defined in the Constitution. The common law is explicitly referenced in the Constitution — the Founders assumed the Constitution would exist in a common law environment. The Constitution is essentially a statute that’s harder to amend than normal statutes in that it requires multiple legislatures to amend it, rather than just the federal legislature. Stare decisis is a bedrock principle of common law — indeed it’s far more important in a common law system than a civil law system. On what basis could one assert that the Founders intended the principles of common law adjudication to apply to the Constitution generally, but not the principle of stare decisis? One what basis could one assert that the Founders expected stare decisis to apply to every statute except the Constitution?
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November 25, 2009, 12:57 amRicardo says:
Shouldn’t we consider the fact that historically, prosecutions in England were usually initiated by private individuals rather than government officials? The expense of initiating a private prosecution probably tended to keep minor cases out of the courts.
I would sign on to the idea of abolishing public defenders in minor criminal cases if we also went ahead and got rid of publicly funded prosecutors for those same minor offenses. It is unjust to give one side all the resources of the taxpayer funded state while leaving the other side to fend for himself when the defendant faces the risk of going to jail.
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November 25, 2009, 2:37 amBill says:
So “due process” is inherently non-originalist, insofar as it must adapt to a changing environment? Does this apply to any other provisions as well?
Regarding the 31 flavors of Originalism, can anyone knowledgeable out there tell me if there’s a version that would interpret the “due process” and “equal protection” clauses as essentially meaning that the law must be “fair” (the first “fair” as in “just”, and the second “fair” as in “everyone gets the same treatment”) but that’s all the original meaning was (with some expectations about what that included), so that the constitutionality of all laws should be judged by the best moral judgments, theories, and reasoning of our time, without forcing “blinders” on todays judges to pretend they share the same prejudices and false beliefs that people in the past did. (For example, denying women the right to vote would fail Equal Protection today, even though Framers of that amendment beleived otherwise because of irrational gender bias — the right answer to the constitutional question didn’t change, only the judges’ abilities to see the correct answer changed)?
That might be a form of Originalism I could sign onto.
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November 25, 2009, 5:40 amVisitor Again says:
The Founding Fathers were intelligent enough to author a Constitution the terms of which would be subject to interpretation in light of changed circumstances. They did not have a rigid or static conception of society or of the law. They were visionaries. They intended to and did write a document the principles of which would endure for the ages. That was the original intent.
Gideon was right when it was decided and it’s right now.
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November 25, 2009, 6:00 amAndrew says:
Visitor Again, the framers of the Constitution most certainly did have a static conception about some things. They wanted the President to serve a term of four years, not a day more or less. There are a hundred other examples. Even constitutional provisions that are more flexible, and allow the judiciary to apply them in light of changed circumstances, impose some outer limits on the judiciary; otherwise, why bother having a Constitution?
I’m not saying Gideon was/is wrong. Rather I’m saying that Gideon is not a license for the Court to do whatever it pleases, in the name of “changing circumstances.”
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November 25, 2009, 7:58 amJoe says:
Dave N. as to allocution — I’m aware of this practice. But, “a statement” is not “testimony” to my understanding. This is shown in the congressional context — some were concerned that some witnesses made “statements” to Congress but were not sworn in. One has more weight than the other.
As suggested here, the allocution in the CA was treated as a form of “testifying” pursuant to statute. Comments suggest some states are different, such statements might be unsworn.
Again, “testify” to my understanding means “under oath” by definition, including be liable for perjury. Making a “statement” not sworn might make you liable in some respect (e.g., you can’t lie to Congress, but it’s a lesser charge), but it is not the same.
I might be wrong, of course.
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November 25, 2009, 8:09 amPintler says:
If you don’t think the courts should overturn in that case, should they also have stuck with ‘separate but equal’ until an amendment came along? I confess to being rather conflicted.
The thread is a great use of the Socratic method :-).
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November 25, 2009, 8:11 amJoe says:
Joe, while I appreciate the information, because there was a statute involved mandating counsel in federal courts, it does not follow that it was constitutionally mandated, which is the issue.
The “issue” of my comment was reflected by the comment that I was responding to (and quoted) — the comment suggested that since it took to the 1930s to decide it was necessary, original understanding seems to suggest a paid counsel was not required.
And, if it was protected by statute, the courts would not have to deal with the constitutional issue in that context: it would be an advisory opinion.
Furthermore, the statute was not even the only thing I referenced. The courts also held that basically no BOR protections applied to the states at all, so again, would have no need to decide this one. [As with other protections, like they did with the 8A, they might have in dicta ... I don’t know.]
In fact, it leads to the opposite conclusion, i.e, that the constitution doesn’t mandate counsel (but merely permits) and thus a statute was required.
Statutes often are passed to provide enabling legislation to rights protected, particularly those that would be helped by detail. There are speedy trial laws, for instance, without the implication there is no right to speedy trial since the law implies the protection is discretionary.
And the Due Process issue is a red-herring; even if it does require it now under an evolving standards of decency interpretation, (to which I make no objections here) the issue is constitutionality under the Sixth Amendment.
As applied to the states, the federal protection was secured via the 14A Due Process Clause. Powell v. Alabama itself noted due process required the protection in the specific incident, not necessary in all cases. The courts repeatedly spoke about how the various protections of the BOR are not just important on their own, but as due process protections or necessary for basic liberty. So, it is at least somewhat artificial to cite the 6A alone.
Again, many state courts pre-1930 also held the measure was necessary. Adding to the state laws that did so, this further underlines why the federal courts had little chance to deal with this issue.
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November 25, 2009, 8:21 amJaimeInTexas says:
There are only 3 crimes explicitly mentioned in the Constitution: counterfeiting (hmm, reserve notes?), piracy and treason.
As soon as we get rid of most Federal laws we can go back to not needing so many trials at the Federal level.
And not being able to prosecute prosecutors for lying in court, witholding excuplatory evidence, etc seem to me an inducement to continue those practices and a violation of due process.
Let the defendant pay for their own counsel but also remove prosecutor’s immunities.
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November 25, 2009, 10:11 amJaimeInTexas says:
He he he. Twenty dollar gold or silver coin at the time.
Ron Paul 2012
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November 25, 2009, 10:17 amMark Field says:
There’s an article by H. Jefferson Powell titled “The Original Understanding of Original Intent”. You can find it online if you google it.
This is Jack Balkin’s argument.
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November 25, 2009, 11:07 amGabriel McCall says:
Along similar lines, I’ve wondered what originalists think of the 7th Amendment’s guarantee of a right to trial by jury “where the value in controversy shall exceed twenty dollars.” Does that mean twenty dollars today or some sort of inflation indexed amount reflecting what twenty dollars was worth at the time of the adoption of the 7th Amendment?
The word dollar had a specific common-law meaning at the time of the founding: it was a coin containing about 25 grams of fine silver. Constitutional provisions based on the dollar should be interpreted based on the meaning of the word at that time, regardless of later changes to the definition. To argue otherwise is to suggest that Congress has the power to keep Obama in the presidency for the rest of his life by redefining the length of a “year”.
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November 25, 2009, 11:25 amBo says:
Orin–
It appears the Nevada Supreme Court read your post.....
http://www.lvrj.com/news/courts-to-assess-indigent-costs-70448792.html
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November 25, 2009, 12:14 pmtroll_dc2 says:
Nope. The Supremes have held that Congress lacks the power to define the terms of the Constitution. City of Boerne v. Flores, 521 U.S. 507 (1997).
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November 25, 2009, 12:24 pmjrose says:
Regarding the 31 flavors of Originalism, can anyone knowledgeable out there tell me if there’s a version that would interpret the “due process” and “equal protection” clauses as essentially meaning that the law must be “fair” [...] so that the constitutionality of all laws should be judged by the best moral judgments, theories, and reasoning of our time
This is Jack Balkin’s argument.
If the original meaning of “due process” is “fair”, then yes. If the original meaning is “fair process”, then Balkin argues you can’t go beyond the process, and into the substance of the law.
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November 25, 2009, 12:42 pmjrose says:
The Supremes have held that Congress lacks the power to define the terms of the Constitution. City of Boerne v. Flores
I thought that was limited to the terms in the 14th Amendment. Of course, Congress can’t redefine the word “year”, but it might be able to redefine the words “natural born” as it relates to Presidential qualifications.
If “twenty dollars” was commonly understood to mean the value of a specific coin, then an originalist would be forced to adjust for silver inflation since the coin is worth more than twenty dollars today.
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November 25, 2009, 12:50 pmnice strategy says:
Assuming that this is sarcastic, it is an unfair misrepresentation of my point. Whether or not a poor defendant at the time of ratification could afford the services of an attorney is relevant, and our information incomplete. I am making an educated guess that conditions are very different now, based on:
*length of trials
*complexity of evidence
*billing rates
*income inequality
*no barter system
*pro bono attitudes in larger vs. smaller communities
etc. If it turned out that the framers wrote the 6th amendment in an environment when many people who wanted an attorney could not afford one, went without, and the chips fell where they did, well, then the originalist contention that the language of the 6th amendment merely forbids the government from forbidding defense counsel in court, and that Gideon was therefore wrongly decided, has a lot more weight. The assertion “if they intended more equity they would have written more specific language” is still questionable IMO but a whole lot more valid if the context of their times in regards to indigent defendants is comparable to now. I doubt it, but I’m not going to write a research paper to confirm or refute my hypothesis today.
I am not assuming that my educated guess is correct, but you have not provided one iota of evidence or reasoning to refute it. So the question stands.
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November 25, 2009, 12:58 pmBob from Ohio says:
Awfully demanding, aren’t you.
As others have pointed out, Texas, Georgia and South Carolina among other Southern states, are not exactly friendly to public defenders.
How about Alaska and the Dakotas for others.
At this point in time, Ohio would not abolish it because there is a Dem governor and a Dem House. However, if and when that changes, the GOP in Ohio is quite conservative and I can easily imagine it.
Basically, my “evidence” is the current state of public funding of PDs and the rate of re-imbursement of court appointed counsel.
Its quite low now when it is mandated. If it was ever optional, it is one of the easiest budget lines to remove.
Who would oppose it? Lawyers and criminals. A lot of the public thinks that is a repetative list.
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November 25, 2009, 1:50 pmKeithK says:
Wouldn’t we be better off if the courts did stick to the original meaning of the Constitution even in cases where pretty much everyone likes the new rule? If SCOTUS did overturn the requirement that counsel be provided on originalist grounds there’s a good chance that the law would subsequently be changed either by statute or amendment. The rule of law is preserved better by this process than by the courts expanding constitutional protections beyond what the document actually guarantees.
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November 25, 2009, 2:15 pmDilan Esper says:
Bear in mind too that beyond the issue of whether public defenders would be abolished, there’s also the effectiveness of counsel issue. If you overturned Gideon, you would also have to overturn Strickland, and that would mean that states might very well maintain some token indigent defense program but which was so underfunded and disfunctional that poor defendants would routinely get lousy representation and there might be a lot of false convictions and innocent folks forced to plea bargain under such a system.
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November 25, 2009, 5:46 pmGene Madison says:
I don’t believe it implies that an attorney will be provided for you, only that the Federal Government has no power to prevent the defendent from adequately defending himself. I do not believe it allowed for someone to speak on behalf of the accused, but to offer advice and act as an interpreter of the legal system.
Going a step further...
Doesn’t this forbid making deals for a guilty plea? If a person wasn’t guilty, but offered a plea bargain of probation... Saves money, reduces stress, and avoids a trial. ?Perhaps? it was in response to a practice in British courts that convinced the accused the evidence would convince a jury he was guilty.
In another post on Global Warming issues, scientific data may have been withheld to prevent additional skepticism in their faithful conclusion about global climate change. Similarly, perceptions are manipulated on the Constitution and what “Law” actually is. This is where abuses begin... And how intent is ignored for what some refer to as “the best interest of the general welfare.”
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November 25, 2009, 6:23 pmMegalodon says:
Scalia wants to “go back” on that issue. Or at least he speaks contemptuously about the precedent holding that the state must provide counsel.
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November 25, 2009, 9:18 pmarbitraryaardvark says:
I make no claim to being a pure originalist; I support a weak form of stare decisis. a few thoughts anyway.
i think that due process is the proper basis for gideon. good movie and book too btw. similarly our “11th amendment” rules aren’t really about the 11th amendment.
indigent counsel typically isn’t free; the defendant gets a bill and then doesn’t pay it. in practice, indigents don’t always get counsel.
i’ve been falsely accused of crimes 3 times while indigent, charges dismissed 3 times, but 2ce was denied appointed counsel — my law degrees might have been a factor although i don’t practice.
unresolved questions — is there a 6th a right to counsel who is not a member of the bar? at one time the public defender function was carried out by the political parties. your precinct captain or ward boss would put up bail and argue your case. source, a book i have on the vare machine in philadeplia.
do you have a right to represent yourself and also have an attorney in your case?
gideon’s story– clarence earl gideon was falsely convicted of robbing a sack of quarters from a pool hall on the south side of haniibal missouri. the pool hall was gone by the time i was living in hannibal. he was fingered by the guy who actually robbed the pool hall. he hand-wrote a petition for cert from prison, and won not just at the supreme court but at trial on remand. not all pro se cases are frivolous.
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November 25, 2009, 9:49 pmMark Field says:
Hadley Arkes argues that it does.
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November 25, 2009, 10:20 pmJoe says:
There are only 3 crimes explicitly mentioned in the Constitution: counterfeiting (hmm, reserve notes?), piracy and treason.
I’m not sure what “explicitly” means exactly in this context, but the Constitution does mention more: “Felonies committed on the high Seas, and Offenses against the Law of Nations,” for instance.
But, the Constitution does not need to list crimes. For instance, does it have to list the power to punish harm to the President or federal judges? The powers supplied have with it the necessary and proper supplementary power to punish to carry them out.
Given limited or not, there are numerous powers (depending how you count, over twenty in Art. I, sec. 8 alone), that is a lot of punishment possibilities. Tax fraud alone.
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November 26, 2009, 8:23 amRob says:
What ever happened to letting due process work its way out? If a person needs counsel to guide through the legal pyramid in order to provide a defendent or plantiff due process then so be it. It is about the due process and presenting the facts of law as provided by the our Constitution. What do you think?
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November 26, 2009, 12:48 pmDavid Nieporent says:
Actually, all of these are properly understood as negative rights, not positive ones. You can’t walk up to a courthouse and say, “I’m entitled to a lawyer” or “I’m entitled to a jury.” (Well, you can say it. But you’re not entitled to one.) The government does not violate your rights by not giving you a lawyer or a jury. Rather, the government violates your rights by putting you on trial without these things.
In other words, the sixth amendment is the negative right not to be tried if you don’t have a lawyer or jury or the like, not a positive right to have a lawyer or jury.
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November 26, 2009, 11:17 pmDavid Nieporent says:
And Clement pointed that out recently at oral argument in Pottawattamie County. There’s no basis in the text of any statute for prosecutorial immunity; it’s just something courts invented on policy grounds.
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November 26, 2009, 11:26 pmjrose says:
Of course the entire thread is premised on being put on trial. If you don’t like the use of terms “positive rights” (government must provide a lawyer when you are put on trial) and “negative rights” (government is merely prevented from taking away your own lawyer) in that context, fine by me.
The substantive question is which side should a textualist take assuming the trial?
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November 27, 2009, 8:15 amDavid Nieporent says:
I agree that this is the question Orin raised; that doesn’t mean I can’t address a tangential point being discussed. I don’t think textualism answers the question; it can be construed either way. Which means one would need to examine the way it was understood when the 6th, and 14th, amendments were ratified.
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November 27, 2009, 11:03 amMark says:
For those of us who support Gideon as a policy choice (I’m one — I’ve done appointed work for years and believe it to be important), we still have to ask whether a judicial decision like Gideon is the best way get true public support for criminal defense. The New York appointments system — which for years paid only $20/hour for very significant work — shows that the judiciary can establish a positive “right” but that further legislative work is necessary to make that right a reality. I believe that legislators, chafing against judicial policy-making, may use the fact that a positive right is judicially created to starve the right, or that the judicial “remedy” obviates the need for the legislature to truly confront and deal with a societal problem because the political heat is off them. Examples, from the Individuals with Disabilities Education Act and various federal mandates (e.g., 55 mph with no State enforcement), indicate that this phenomenon takes place. Advocates for change may have a short-term policy win, but a long-term policy loss. Without public support for a new, basic governmental program, I believe that we often end up with a token program to cure the problem politically but no long-term commitment to cure the actual problem.
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November 27, 2009, 3:13 pmDave Hardy says:
Don’t we have a certain input here from the equal protection clause?
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November 27, 2009, 9:22 pmAnon says:
The best academic look at this subject is by the Donald Dripps of San Diego Law, entitled: “Sixth-Amendment Originalism’s Collision Course With the Right to Counsel: What’s Titanic, What’s Iceberg?”
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November 27, 2009, 11:17 pmGabriel McCall says:
I’m fine with that. So by that rule, all Constitutional references to dollars must be interpreted as referring to a coin equivalent to the Spanish dollar AKA “piece of eight”, 25.56 grams fine silver: about 15 USD today.
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November 30, 2009, 1:03 pmPublius says:
I just posted an article on originalism at thefourthbranch.com. Let me know your thoughts!
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December 8, 2009, 4:13 pmkris says:
This was such a thought provoking post, you’ve inspired me to do one of my own.
I’m sick of originalists acting like they own the constitution — and that the judiciary went “wrong” starting at Marbury v Madison. I suppose they thing the Founders pulled our entire system of law out of the ether or by Biblical revelation. So thank you for reminding everyone of our common law roots.
It’s too bad the Founders didn’t prescribe themselves how the Constitution should be interperted. I somehow doubt they, many of whom were trained in the Inns of Court, would adopt a know-nothing approach, thinking American society would crystalize in time.
Our strict originalist friends are happy to bang the drum for “purity” and “constitutional values” — until, I suspect, they get in trouble with the law.
I would think in police custody, they’d forget their “principles” and take their Miranda rights and Brady Discovery.
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December 31, 2009, 6:41 am