Today I am going to write a little about the Sixth Amendment, focusing on one of the “Law and Order” rights that many people are familiar with.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” Sixth Amendment

As you can see, the Sixth Amendment is relatively detailed, listing minimum processes that must exist for a criminal prosecution. Among other things, the Founders rejected the often arbitrary English justice and wanted to ensure that government prosecutions were fair. Given the importance and complexity of our criminal justice system, every part of the Sixth Amendment has been (and continues to be) refined by the courts and legislatures.

My focus now is one on fundamental Constitutional right from the Sixth Amendment, the right to an attorney when charged with a criminal offense. This arises from the “Assistance of Counsel” language in the last sentence, and breaks down into several components. I call this one of the Law and Order rights as its one often heard on TV: the right to have a court appoint you an attorney if you cannot afford one. This right, of course, is not expressly written in the Sixth Amendment, yet is nevertheless a Constitutional right.

The road to having a court-appointed attorney was slow, being non-existent until the early 20th century, and then advancing through several Supreme Court over an influential thirty-year period. In 1932, the Court decided Powell v. Alabama, 287 US 45, which held that in certain circumstances, a trial court had to appoint a lawyer for a criminal defendant who was charged with a capital (death penalty) offense. Powell is the “Scottsboro Boys” cases, one infamous example of racial prejudice and the miscarriage of justice in America that every American should know.

Over the next thirty years, the Court gradually expanded on the right to a court-appointed attorney, first to all federal cases, and later all capital cases. I will spend the remainder of this post on the landmark case Gideon v. Wainwright, 372 US 335 (1963), which expanded this right to all felony cases; i.e. not just capital cases, and not just federal cases. Mr. Gideon was charged with breaking and entering with intent to commit a misdemeanor, which was a felony under Florida law. Mr. Gideon could not afford a lawyer, requested one, and was told that Florida only appoints lawyers for capital offenses. Mr. Gideon was found guilty and appealed.

The Gideon opinion is authored by Justice Hugo Black, one of the most influential Supreme Court justices of the 20th century.  Black was an avowed textualist, and on first pass, it may seem odd that a texualist would support a Constitutional conclusion that does not appear to be expressly written in the text. Supreme Court jurisprudence cannot always be reduced to the simplistic left/right we use for much of politics, even if it often seems that way today. Speaking of which, this seems like a good time to go to the opinion and see exactly what the Court had to say about this fundamental right.

Because the Sixth Amendment was being applied to the states via the Fourteenth Amendment, the right in question had to be “fundamental.” First, the Court revisited a prior decision, Betts v. Brady (316 U.S. 455 (1942)), which had facts quite similar to Gideon, but nonetheless held that failing to appoint counsel to the criminal defendant was not so offensive to the fundamental concept of fairness as to deny due process. The Court expressly overruled Betts, stating that the Sixth Amendment’s guarantee of counsel is a fundamental right. I am never going to phrase it better than Justice Black (who also cites the Powell Court):

In returning to these old precedents, sounder, we believe, than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

I think these words offer much to consider, especially when written by a man committed to a textualist approach to the Constitution. One can adopt a legal approach firmly grounded in the text of the Constitution that adopts a broad view of what the text means, while honoring the important concepts behind the text’s purpose. Our fundamental rights require not just the vigilant protection I usually advocate, but also ethical jurists, familiar with history and our nations ideals, to apply such rights to the present day. We only get judges reflecting our ethics and morals from politicians offering the same. Choose wisely.