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Kerr, originalism, and the right to counsel (Joe)

Orin has a post up at Volokh Conspiracy posing a thought experiment (or something) to originalists.  Essentially, it's been good constitutional law for a long time that the sixth amendment right to counsel means that the state must provide an attorney for a criminal defendant (in a sufficiently serious case).  Under stare decisis principles, this shouldn't be changed.  But if you're an originalist, meaning that you believe either the original public meaning or the original intended/expected application should govern constitutional interpretation, should you favor overruling all those cases?  At the time the U.S. Constitution was drafted, in England the right to counsel meant that you could get the assistance of counsel if you could afford a lawyer, which was itself a break from the older tradition in which defendants didn't get lawyers, period.  Or so the theory goes.  So, arguendo, the originalist reading of the sixth amendment is that it guarantees you the right to be represented by an attorney if you can afford to hire an attorney.  You're an originalist.  What do you do?

This is supposed to get at what the proper role of stare decisis (adherence to legal precedents) is to an originalist.  I get that.  But unless I'm just missing something, this seems like a lousy example.  Even if we agree that the original meaning of the sixth amendment right to assistance of counsel means the government doesn't have to pay for lawyers for indigent defendants, the fifth and fourteenth amendments guarantee "due process of law."  As far as I know, even among wacko conservatives (ahem, Justice Thomas), it is undisputed that this guarantees procedural due process, i.e., a procedurally fair trial.  And I feel fairly confident in saying that there's absolutely no way that, under our current legal system, a felony defendant can get a procedurally fair trial if he doesn't have an attorney.  Thus, the due process clauses of other amendments have to independently guarantee the right to an appointed attorney.  Which means that that the originalist who doesn't believe in stare decisis only gets to say "well, you should hold that it's guaranteed by the fifth and fourteenth amendments instead of the sixth."  Or really, the originalist justice will at most say "it's guaranteed by the fifth and fourteenth amendments, and we therefore do not reach the question of whether it's guaranteed by the sixth." 

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3 responses to “Kerr, originalism, and the right to counsel (Joe)”

  1. Dean C. Rowan

    It seems to me that whether or not you pay for your attorney, you’ll pay for your attorney. Thus, it doesn’t matter what the Sixth Amendment meant, means, or will mean, then, now, or tomorrow.
    Let me make two predictions, one safe, the other less so. First, these “thought experiments” (or something) over originalism are not long for this world. Such tedious sophistry, such mind-numbing navel gazing and nose picking! The Orin Kerrs and Jack Balkins of the world are free to ponder all the puzzles they can devise, but fewer and fewer of us are going to attend to them. That’s the safe prediction, for it’s pretty clear that fewer and fewer readers really care about the vicissitudes of this particular big O, the law as it was when it was handed down, the utterance from the omphalos radiating through time and space. We have lives, you know.
    The second prediction is only tangentially related, but I want to get it off my chest. Pragmatism, too, shall wane. Take Joe’s argument: “there’s absolutely no way that, under our current legal system, a felony defendant can get a procedurally fair trial if he doesn’t have an attorney.” Well, in fact, there is some way it could be so. Some pro se defendants are very wily. I know. I receive letters from prison inmates seeking legal research assistance all the time. Some are confused. Many are straightforward, precise, and reasonable requests.
    It might appear that Joe’s argument stems from a pragmatic foundation, a real world, open-eyed acceptance that the system won’t work without professional guidance, a fact we simply have to confront and prepare to accommodate. But I think, to the contrary, that Joe is coming from a potent sort of idealism, which I embrace. Who cares whether some defendants will be able to navigate the system successfully? Even so, everybody ought to have access to competent representation when the need arises. Who cares what the Constitution may or may not intend? Everybody ought to have access. This sort of stubborn idealism will eventually oust the spineless pragmatism emanating these days preeminently out of our courts, our legislature, and our White House (another big O). I urge us all to speed its demise, to nurture and embrace our inner wingnut.

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  2. Ruchira

    Some pro se defendants are very wily. I know. I receive letters from prison inmates seeking legal research assistance all the time. Some are confused. Many are straightforward, precise, and reasonable requests.
    Could we have a post on this? Not right now. Well after the Thanksgiving turkey and pie have been eaten and digested will be a good time. No names need be named. But a few illuminating examples of the type of material that prison inmates are requesting will make for a very interesting article. Think about it over the festive dinner tomorrow, Dean.

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  3. Dean C. Rowan

    I had a feeling I might get a tap on the shoulder after I wrote those remarks. I imagine I can craft something. Certainly, names must be left out. But I’d also have to avoid exploiting the desperation evident in many of these inmates’ requests.

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