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.

troll_dc2: 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).

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.

jrose: 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?

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.

David Nieporent: 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.

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?

ArthurKirkland: If Gideon is bad law, prosecutorial immunity is positively anti-American.

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.

jrose: 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?

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.

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.

Doesn’t this forbid making deals for a guilty plea?

Hadley Arkes argues that it does.

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.

Scalia wants to “go back” on that issue. Or at least he speaks contemptuously about the precedent holding that the state must provide counsel.

Going a step further…

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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.”

Name them — and your evidence.

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.

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.

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.

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.

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.

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”.

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).

It appears the Nevada Supreme Court read your post…..

http://www.lvrj.com/news/courts-to-assess-indigent-costs-70448792.html

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”.

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.

There’s an article by H. Jefferson Powell titled “The Original Understanding of Original Intent”. You can find it online if you google it.

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.

This is Jack Balkin’s argument.

Cornellian: 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?

He he he. Twenty dollar gold or silver coin at the time.

Ron Paul 2012

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.

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.

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?

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 :-).

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.

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.”

Gideon was right when it was decided and it’s right now.

Jacob Berlove: In other words, in light of the increased complexity of the rules of trial, process that was previously “due” and sufficient no longer is.

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.

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.