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Scalia and the Right to Counsel

He would defend your liberty, but not your right to a lawyer.

The preservation of personal liberty is of “great importance,” for if a judicial officer imprisoned arbitrarily whomever he desired, “there would soon be an end of all other rights and immunities.” Thus wrote Justice Antonin Scalia, quoting Blackstone, in his 2004 dissent in Hamdi v. Rumsfeld arguing against the indefinite detention of U.S. citizens charged with terrorism. Such language has led many commentators to consider Scalia as a strong protector of individual liberty against governmental overreach in criminal prosecutions. And indeed, a myriad of decisions on search and seizure, the right of defendants to cross examine prosecution experts and witnesses, and the right to trial by jury, to name a few, add to that perception.

Yet, if Scalia were indeed a defender of due process, one might reasonably expect him to hold the firm belief that lawyers in criminal cases “are necessities, not luxuries,” and that defense lawyers are “essential” to fair trials because “they are the means through which the other rights of a person on trial are secured.” However, Scalia fundamentally disagreed with the Warren Court’s decision in Gideon v. Wainwright and its progeny, requiring state governments - through the Fourteenth Amendment - to provide lawyers at all critical stages of a criminal proceeding when defendants face a potential loss of liberty. In both speeches and decisions, Scalia concluded that Gideon was “wrongly decided.”

How can these two sides of Scalia’s philosophy be reconciled? The answer comes in an understanding of Scalia’s “originalism” approach to the Constitution. Scalia believed that one must look first to the actual text of the Constitution and then apply the historical meaning the words had at the time the original language was adopted. Thus, for example, the Fourth Amendment’s declaration against “unreasonable search and seizures” or the Sixth Amendment’s demand for a “speedy trial by an impartial jury,” are sacrosanct positions that no government shall violate. But to the originalist Scalia, the Sixth Amendment right to counsel only guaranteed that government could not prevent a defendant from having the “assistance of counsel” for his defense. It does not, in Scalia’s opinion, require government to affirmatively provide lawyers to those that of limited means.

However, a review of the role of defense lawyers at the time of the drafting of the Constitution does not require all “originalists” to reach the same conclusion. In fact, Justice Scalia could have taken a much broader view of the right to counsel-- and helped provide adequate care to millions of Americans during his decades on the court-- and still been consistent with his “originalist” approach to Constitutional doctrine. Our history supports such a conclusion.

Because the Europeans who arrived on the shores of colonial America were, in many instances, those who had been subject to religious persecution in European courts, the people of the new emerging nation were not content to adopt the justice systems of their Mother Countries. Having experienced tyranny first hand, the American colonists were suspicious of concentrated power in the hands of a few. An individual’s right to liberty was self-evident, and therefore there needed to be a high threshold to allow government to take away the liberty that the Creator had endowed in each and every individual.

The English justice system that the colonists set about reforming was transitioning from what today would be called the “inquisitorial model” of criminal justice. The presumption of innocence did not exist in the inquisitorial system. Instead, because the judge makes a final verdict based on the evidence that he himself has collected, there is a presumption of guilt inherent in the trial proceedings. In the inquisitorial system, therefore, the burden of proof rests with the defendant accused of a crime to establish his own innocence.

In pre-colonial England, defense lawyers were specifically denied to the accused in the most serious cases. But with the introduction of defense lawyers in colonial America, criminal trials started to become actual trials. Procedural rules started to be written down and codified. Evidence, including hearsay, could no longer be introduced without restraint. And the presumption of guilt became increasingly contested. This was the birth of the adversarial system – a system based on the simple notion that the truth is best made clear through the back and forth debate of opposing perspectives. As such, lawyers were routinely appointed to the accused in serious cases, as defense lawyers often rode circuit with judges hoping to get the experience that came from appointed criminal work.

When the North American colonies revolted against the crown, this right to counsel was quickly enshrined in all but one of the original 13 state constitutions. The framers of the U.S. Constitution created a Bill of Rights to specifically protect personal liberty from the tyranny of big government. – including the Sixth Amendment right to counsel

Though Gideon v. Wainwright is often hailed as the point in time when states were required to appoint counsel to accused felons, the fact is that the vast majority of states were already providing counsel in all felony cases well before 1963. In fact, the first state to require not only the appointment of counsel in all cases (including misdemeanors) but also the payment of counsel for services rendered was Nevada, as far back as 1877.

Given this “originalist” history, Justice Scalia surely could have extended, or at least tried not to limit, the scope of the Gideon ruling. History tells us that the constitutional right to counsel includes the appointment of defense counsel as a fundamental part of due process. The history of Justice Scalia’s right-to-counsel jurisprudence over the decades suggests he chose a deliberate path that fellow “originalists” might not have taken. It is a legacy that should not be forgotten when assessing the late justice’s Sixth Amendment legacy.

David Carroll is executive director of the Sixth Amendment Center.