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Two Thoughts on Rothgery:
Having read more of the briefs in Rothgery v. Gillespie County, the Sixth Amendment right-to-counsel case I blogged about below, I have two quick thoughts.

  First, it seems to me that the case is made much more difficult by the diversity of state practices. Every state system has a different procedure for bringing charges against suspects, and states often use common terminology in different ways. (The best example of the latter being the word "arraignment," which different states use in different ways.) Given that, it's often hard to know what to make of the Court's Sixth Amendment precedents; those precedents often do not explain clearly what exactly the state procedure involved. Similarly, it's hard to know exactly what to make of the Texas "magistration" hearing at issue in this case. The lower court did not have a hearing on the proceeding's significance.

  The Supreme Court might get around this by trying to define the Sixth Amendment right by reference to something else the Constitution requires, such as the Gerstein v. Pugh probable cause hearing required after arrests under the Fourth Amendment. But otherwise it may be hard for the Court to come down with a simple rule. In light of that, I wonder if the Court will end up sending the case back for more development on the nature of the Texas "magistration" hearing Rothgery received; that may make a difference, and I understand the record to be unclear on the precise nature of the proceeding.

  A second thought on Rothgery really isn't about the case itself, but rather constitutional methodology surrounding it: Am I right that no one is an originalist when it comes to the right to counsel? If I understand the history of the right to counsel, it was originally understood to mean that defense attorneys are permitted if a defendant had hired one, not that the government would provide one for him. The common law practice in the 16th and 17th centuries had banned defense attorneys in criminal cases; defendants were not permitted to use them, as it was feared that the defense attorneys would distract the jury and get in the way. If I recall my history correctly, Parliament had established a right for an attorney to appear and argue on a defendant's behalf in the late 17th century in treason cases, and that had gradually spread in the 18th century to other criminal cases. The first Congress did not provide a lawyer for defendants beyond capital cases, further suggesting that the Constitutional right to counsel was originally understood to mean only a right to have an attorney appear on a defendant's behalf if the defendant had hired the attorney on his own. See, e.g., W. Beaney, The Right to Counsel in American Courts (1955).

  I'm curious: Do self-described originalists think that we should go back to this interpretation? I looked around just a bit, but I couldn't find much on originalist interpretations of the right to counsel.

Related Posts (on one page):

  1. Two Thoughts on Rothgery:
  2. When Does the Right to Counsel Attach?:
George Weiss (mail) (www):
on the orignonalist front..ive always wondered whether it is completely kosher to assume that since X was the right at 1789 in England, therefore it must be that the original meaning is precisely to protect what was the status quo in england, no more no less.

isn't it true that our fathers found the British system of rule a might oppressive and were struggling to protect against it when they drafted that bill of rights?

The bill of rights itself was something of an added afterthought of protection to the federal government strengthening constitution. The original thought of the constitution was that the regular protections of criminal defendants would come from statute- just as it was/is in england. (other than ex post facto and attainer, which are in article 1 itself-which by definition, cannot be protected against by the very body which would violate them.

thus, the British system wasn't enough-so the bill of rights was needed to guarantee further rights. How can we therefore imagine that what Britain did was precisely what was meant?
3.17.2008 12:09am
John (mail):
I think free counsel for indigents is a good idea.

But the notion that the Constitution requires it is, like so much "Constitutional jurisprudence" (insert oxymoron joke), just not so. However, better-placed lawyers than I think otherwise.

It would have been better for the right to counsel to be the result of legislation, where a legislature could have considered the timing of the right, but it wasn't, so ever after we must deal with the ambiguities of law based on emotion rather than words.
3.17.2008 12:13am
Germanicus:
so ever after we must deal with the ambiguities of law based on emotion rather than words.

Even assuming your originalist position, it doesn't follow that the right to counsel is based on emotion. There are rational arguments to be made in favor of such a right, and many of these have been expressed in words. The fact that the Constitution's words don't create the right, under your interpretation, is important, but this isn't an issue of choosing between a divine constitution and gut instinct. Emotion played its role in the creation of the constitution, it would have played a role in a legislative right to counsel, and it played a role in the SCOTUS opinions that established the right.

Your position is certainly defensible, but not by that argument.
3.17.2008 12:24am
Respondent:
George Weiss,
I think that your argument is best applied when it comes to the first amendment, since the first amendment was passed largely in response to deep seated arguments with British understandings of the right to free speech. But many of the criminal procedural rights, including the right to counsel simply codified the common law right available at the time, which was often identical in both the England and the colonies.

As to the right to counsel, Justice Scalia's majority opinion for the court in Gonzalez-Lopez suggested the original meaning of the clause included the right to choose one's own counsel, and during the case's oral arguments, he strongly suggested that it didn't include the right to court appointed counsel. That said, I believe that the due process clause should be understood to provide such a right, because the original understanding of the clause provided a right to, well, "due" process, many of whose elements were originally "discovered" by common law courts. While the right cannot be said to possess any meaning if it doesn't guarantee at a minimum whatever rights were held at the time of the clause's adoption, as it seems unthinkable to me that those who drew up and those who ratified the clause would have agreed to allow judges to whittle away the right claiming that its components were no longer necessary (see e.g. Justice Thomas's dissent in Carmen Deck v. Missouri), the reverse cannot be said to be true. Just as a right can become empty by a court deciding that its components are no longer necessary, a right can also become empty when changes in society or technology make the traditional components of the right inadequate to serve its ends. While some rights of the constitution inevitably don't allow room for added components even when circumstances would so require, the due process clause allows a court to decide that additional procedures are needed before depriving a person of life, liberty, or property.

IMHO, the right to court appointed counsel is just one of those cases. The law has become far more complex than it used to be, in terms of the number of criminal statutes, in temrs of their complexity, and in terms of the complexity of criminal procedure. It is almost inevitable that any fair minded court would determine that some right to court appointed counsel must exist in the modern era, in order to for the process served to deprive a person of liberty to be "due", although of course reasonable people can disagree on what the scope of that right is. I think in many cases that even originalist interpetations require line drawing and would just add a the right to due process to the list (although the basic rights guranteed at thime of the ratification of the fifth and fourteenth amendments should still be held immutable (so I would have to reject Maryland v. Craig).
3.17.2008 12:42am
George Weiss (mail) (www):
only the first?

how about the third-probably not a right people had in england in 1787
ninth-completely inapplicable to england
tenth-also inapplicable to england

perhaps its only criminal procedure issues-

but then-there is the seventh-which isn't a criminal pro amendment but does seem to simply codify what was the status quo of england.

given this situation, and the fact that the constitution would not be agreed to by Madison or mason until these individual rights it were ratified-assuming an amendment is the codification of common law seems pretty tenuous.

ps-i doubt that england worried so much about cruel and unusual punishment or the right to bail.
3.17.2008 1:07am
Dilan Esper (mail) (www):
Prof. Kerr's question is a good question. It certainly appears that Scalia is aware of this history-- read his opinion on paid counsel of the defendant's choice from about a year ago, which is kind of the converse of the appointed counsel decisions. But I suspect Gideon is entrenched and even conservatives concede that it was a net positive on policy grounds (recall Harlan, who dissented from much of the Warren court revolution, concurred in Gideon), so nobody's interested in overruling it.
3.17.2008 1:21am
Mike& (mail):
Am I right that no one is an originalist when it comes to the right to counsel?

It seems that way.

As to lay people: Except when it comes to school prayer, abortion, gay marriage, and other "political" issues, few people are originalists (or any other -ist).

As to academics: Most originalist academics don't seem to care about much outside of the Commerce Clause. I think that's because most originalists (coincidentally?) are also libertarians. The (non-originalist) Commerce Clause cases have given Congress the power the legislate away a lot of freedom.

In other words, if orginalism had not existed, then man would have needed to invent it.
3.17.2008 2:32am
3L Law Student:
Do self-described originalists think that we should go back to this interpretation?

That's interesting--the language itself is a bit ambiguous. Jeffersonian originalists would, of course, want the States to interpret the meaning of that language for themselves. And however they interpreted the 6th amendment, it is doubtful that any State would fail to provide public defenders in most cases.
3.17.2008 3:08am
OrinKerr:
And however they interpreted the 6th amendment, it is doubtful that any State would fail to provide public defenders in most cases.

Tell that to Clarence Gideon.
3.17.2008 3:21am
Mike& (mail):
That's interesting--the language itself is a bit ambiguous.

Are you confusing textualism with originalism?

If we read the text outside of any context, it would seem to mean that a person has a right to court-appointed counsel. "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."

If only people who could afford lawyers could have counsel for his defense, then "all" would be read out of the Sixth Amendment. Instead, we'd have to say: "In all criminal prosecutions where the defendant can afford a lawyer, he shall enjoy the assistance of counsel>

Even the structure of the Sixth Amendment leads to Gideon's result. For example, everything in the Sixth Amendment must necessarily be provided by the state. For example

* the right to a speedy and public trial
* an impartial jury
* 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


None of those things are something that a defendant can provide for himself. So if you just went off that list, it would be odd that the state would be required to provide everything except counsel. Why list things in that manner?

But, of course, originalists do not simply rely on the text of the Constitution.
3.17.2008 3:36am
Mike& (mail):
And however they interpreted the 6th amendment, it is doubtful that any State would fail to provide public defenders in most cases.

Even today the state fails to provide public defenders to people. The problem of the middle class and the criminal justice system has been discussed ad nauseum. Here's a recent post.

States were also forced (via litigation) to provide public defenders in misdemeanor cases - even where defendants faced real jail time. Argersinger v. Hamlin.

Excuse me for being curt, but if you are indeed a law student (a 3L, no less!), it would behoove you to do some basic factual and legal research before forming conclusions.
3.17.2008 3:41am
Mike& (mail):
Seems David Hume wrote an entire book addressing Orin's second question: "Originalism is, and ought only to be, the slave of the passions, and can never pretend to any other office than to serve and obey them." There's a pretty good reason why you don't find many (any?) politically liberal originalists. It's pretty interesting that the reason for this was given before the Constitution was even written.

Here is practical reasoning in action: "I don't like gay marriage. Hence, I am an originalist. And according to originalism, gay marriage is not a constitutional right."

Of course, that is not how anyone states his claim. Rather, it goes: "I am an originalist because that is the correct world view. According to originalism, gay marriage is not a constitutional right." The person's distaste for homosexuals is left unstated.

Of course, if you do want gay marriage but also want to be an originalist, there is an out for you. Just pull out the trusty Ninth Amendment.

Originalism: tastes great, less filling.
3.17.2008 4:15am
BruceM (mail) (www):
Originalism is good for some parts of the constitution, bad for others. Selective Originalism is the way to go. For example, I think the Founders understood that what society considers "cruel and unusual punishment" is ephemeral and changes over time and had no intent to lock us in to what was considered cruel and unusual in 1787.

Which parts of the Constitution should be interpreted from an Originalist perspective and which should not is quite difficult and should be left to people much smarter than myself. But the notion that either "it's all interpreted as it was when it was written or it's meaningless" is simply not true.

That being said, indeed, nobody is an Originalist when it comes to the Commerce Clause, the right to counsel, the 11th Amendment, and many other constitutional provisions. There's no way the Founders intended a right to appointed counsel if you couldn't afford an attorney. But it's still a good idea and should be incorporated into due process if not the 6th Amendment.
3.17.2008 4:59am
Zathras (mail):
It's possible to have a consistent position holding that there was no constitutional right to counsel in 1789, but there is now.

Criminal procedure at the Founding was a very simple affair. There were no rule books for procedure. Trials were also much shorter. Most people could handle their own defense. There also was next to no forensic evidence.

In contrast, criminal procedure now is much more complicated. A defense or point on appeal could be waived very easily. Trials are generally longer and more intricate. Forensic/scientific evidence is much more important now. All of this means that having counsel in much more important now than it was 220 years ago.
3.17.2008 7:31am
Zathras (mail):
To finish my thought:

The right to counsel is not fundamental. It is derivative on the right to an adequate and fair defense. If criminal practice changes to make it harder to defend oneself, then a right to counsel could exist when there was none previously.
3.17.2008 8:08am
Wrinkle-Free Pants (mail):
Do self-described originalists think that we should go back to this interpretation? I looked around just a bit, but I couldn't find much on originalist interpretations of the right to counsel.

Orin,

Here you go.

Link 1. Judge Kaplan found the Sixth Amendment attached despite no adversarial procedings.

Link 2. Scalia limns the originalist scope of the right.
3.17.2008 9:08am
Anderson (mail):
I like Respondent's due-process argument, though I am curious whether any courts have ever seen the issue that way.
3.17.2008 11:20am
Arkady:
Does this (moral, ethical) issue underlie the discussion:

It is the state that declares an action a crime; it is the state that places me in jeopardy of losing my life, my liberty, or my property. Can the state then say that it is under no moral or ethical obligation to provide me with the means of defending myself against its charges if I do not have the wherewithal to provide for myself? That justice does not require it.

Is this the basic question?
3.17.2008 2:00pm
Mr. Mandias (mail) (www):
<i>Do self-described originalists think that we should go back to this interpretation?</i>

Sure. Public defenders are a good idea, but, yeah, the Constitution means what it means.
3.17.2008 2:11pm
GV:
Here is the oral argument transcript. Chief Judge Roberts once again shows himself incapable of letting the parties answer for themselves. He constantly interjects with how he thinks the parties should answer. Can someone tell him that the purpose of oral argument is not to hear what he thinks of the case or hear how he would argue the case if he were one of the parties? And can someone tell Justice Breyer to let people answer questions before he asks another one? I think oral argument would be much more useful to the rest of the Court if those two would shut the hell up.
3.17.2008 5:54pm
wulak:
Professor Kerr,

It's okay to just wait five hours and write your actual blog post rather than put up a post that says, "I'm about to read something and then post on it later." No need to break it up like that and tease us.
3.17.2008 6:29pm
Warmongering Lunatic:
The right to practice a religion does not imply a duty of the government to provide a place of worship. The right to publish does not imply a duty of the government provide to a press. The right to peacably assemble does not imply a duty of the government to provide a meeting place for the Kiwanis Club. The right to keep and bear arms does not imply a duty of the government to provide weapons to citizens. And the right to the assistance of counsel does not imply a duty of the government to supply counsel.
3.18.2008 1:30am
Brian from WV (mail) (www):
As an originalist (if a "rich-text" originalist) who thinks, policy-wise, that it's a good thing that states and the feds must provide counsel in serious criminal cases I am forced to (tentatively) admit that the "true meaning" of the Sixth Amendment, taken in context, probably does not require it. Neither can I subscribe to the view that, under an originalist reading, the due process clauses require it. That view requires that we read into the clauses some sort of binding general principle that criminal defendants are entitled to state aid to present a minimally competent defense. While that would be perfectly consistent with a Breyer-esque thematic methodology of interpretation, it isn't consistent with originalist methods as I understand them.

However, that isn't the end of the story. No sensible originalist thinks that the justices should way up one day and overrule every major decision that is wrong. Indeed, if Gideon and its progeny are to be overruled I would think it best (for practical reasons) if that were accomplished in a series of cases over time, as such movements of law almost always are. Originalists may be originalists, but they do not entirely disregard the practical considerations of stare decisis (well, maybe except for Justice Thomas).
3.18.2008 3:20am