Originalism and the Sixth Amendment Right “to have the Assistance of Counsel”

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?