June 05, 2005

Positive or Negative Sixth Amendment

Ken at CrimLaw brings up an interesting subject: just who bears which obligations under the Sixth Amendment right to counsel? A negative right would mean, essentially, that the government cannot deprive you of your right to representation. A positive right would mean that the government bears the responsibility to make sure you have the assistance of counsel. Moreover, the Sixth Amendment doesn't seem to differentiate between indigent or affluent defendants. Bear in mind that Ken's analysis, that the Sixth Amendment is a positive right extending to anybody that wants a lawyer, not just the indigent, comes from a defense lawyer. It's not surprising that a defense lawyer thinks the bill of rights should be interpreted to the benefit of a defense attorney's position and that the government should be in the business of hiring innumerable defense attorneys. That's an exaggeration, but it's generally fair to assume that ethical people will still obey the adage, "Where you sit is where you stand." Your profession or part of a decision-making process is going to color your view of how your profession or position should operate.

My own ideological take is that positive rights are generally very, VERY sticky, and that we shouldn't try to fabricate rights that have no model basis in natural law or the natural operations of civil government. I'm not entirely sure how that relates to civil justice, since, as Ken points out, the government is obligated to provide the speedy and public trial, the impartial jury, the nature and cause of the accusation, the witnesses against, and process for obtaining witnesses in favor. Does that mean the government is obligated to provide the Assistance of Counsel, as well? That seems shaky at best.

What did the founders believe it meant? Hard to say. It would seem, though, that they meant it as a negative right; the government can't stop you from obtaining the assistance of counsel. It wasn't until 1932 that it was even the beginning of a positive right, and then only for mentally enfeebled persons in capital cases prosecuted by the feds. It gradually expanded to include those incapable of affording attorneys, in any case, including those prosecuted by the states. The only real limit now is that you have to not be able to obtain the assistance of counsel otherwise; those with means are not covered under the Amendment. It doesn't draw this distinction though I suppose it's somewhat reasonable to assume it only applies where the assistance of counsel would not otherwise be possible.

The relevant parts of the Sixth Amendment say this: "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." Standing alone, that sounds like a negative right; the accused has the right to get an attorney.

If the Second Amendment said "the people shall have the right to keep and bear Arms" instead of "the right of the people to keep and bear Arms, shall not be infringed" would we assume the government has a fiscal obligation to buy us all flintlocks, 9mms and uzis?

Part of the problem is that it's incredibly difficult to expect a layman to defend himself in court. The rules of law, of evidence and of procedure are complex and labyrinthian. They're also hugely controversial. Lawyers and judges spend lifetimes arguing what the various provisions and statutes mean and where they draw lines. Not only that, but it would be impossible for a lawyer to know all the laws of a given state and jurisdiction. Federal, state and local statutes are enormous. That's why specializations are simply a required part of the job.

If our laws were simpler and far fewer in number, and if the procedures streamlined, simplified and clarified, then the idea of a defendant going through court without any assistance of counsel would not be nearly so daunting as it is today. That's a pretty difficult task, and it might not be possible to preserve the rights of the interested parties and still simplify court procedures to the point where average people could ably represent themselves. It deserves pointing out, though, that even lawyers have trouble with some parts of the law, and therefore the right to Assistance of Counsel necessarily connects (tangentially) to the sheer complexity of modern US law.

That point aside, the question remains whether the Sixth Amendment means the government has to pay for your attorney. Considering the early history of the right to counsel, it would seem that their intent and understanding was that paying the attorney was the responsibility of the accused. It's also worth pointing out that industrial age conceptions like socialism, positivism and so forth weren't even really invented by the time the Bill of Rights were ratified. They didn't have the same vocabulary, philosophical, social or political, that we do when referring to people of limited means.

I'd say that the right to have assistance of counsel means they can't keep you from getting a lawyer, but doesn't obligate the government to pay for your counsel. Of course, the federal government and the states will almost undoubtedly continue to pay for indigent defendants' representation, but in the matter of constitutionality I would say that there probably is no right to have the government buy you a lawyer.

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