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.
Ratified in 1791
See Table of Amendments.
What’s the importance of the Sixth Amendment?
As someone who is facing allegations of a crime, it’s important that you understand and apply your rights. Everyone has certain rights granted to them by various amendments and the Constitution.
The Sixth Amendment is particularly important. Why? It guarantees you a right to a fair trial. This amendment is designed to protect you against having your rights violated by those who are currently in positions of authority.
What is the importance of the Sixth Amendment?
On the surface, the amendment is important because it grants every person accused of a crime a right to an attorney. This, on paper, guarantees the right to a fair trial. The problem with the Sixth Amendment is that it is protective but doesn’t always go far enough.
For some, they have a right to a legal defense, but they can only afford a defense such as a public defender. This person may be inexperienced or poorly trained, which is particularly harmful in cases where the accused face long prison sentences, heavy fines or even the death sentence.
Did you know that there are a large number of death sentences that end up reversed because of inadequate legal representation? That’s right, and it’s something that no one should have to be worried about. Individuals should always have a right to a legal defense that is not only adequate but also educated in the person’s case and rights.
The Sixth Amendment also guarantees a speedy and public trial. Why is this important? Nothing could be worse than waiting years in jail for a trial during which you’re found innocent. Similarly, you don’t want a trial behind closed doors, because without the public watching, there’s no telling what could happen. Overall, a public trial keeps the judicial system honest.
Additionally, if you do go to trial, you’ll be tried by a jury of peers who are interviewed and determined not to have a bias one way or another in your case. Your attorney has the opportunity to have certain jurors removed if there is a concern of bias as well.
Finally, the amendment makes sure you’re innocent until proven guilty, not the other way around. The burden is on the prosecution to prove its case, so if there is truly nothing to prove that you committed a crime, you may not need to do much to protect yourself. The lack of evidence will prove what needs to be shown in court.
1791: US Bill of Rights (1st 10 Amendments) - with commentary
The first ten amendments were proposed by Congress in 1789, at their first session and, having received the ratification of the legislatures of three-fourths of the several States, they became a part of the Constitution December 15, 1791, and are known as the Bill of Rights.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace, be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger nor shall any person be subject, for the same offense, to be twice put in jeopardy of life or limb nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use, without just compensation.
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.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.
Some of the State constitutions drawn up during the Revolution included bills of rights. The most famous and influential of these was Virginia’s Declaration of Rights, written by George Mason in 1776. (Mason also had a large hand in writing the Virginian Constitution at about the same time. Strictly speaking, the Declaration of Rights was not part of that constitution.) It is upon Mason’s Declaration of Rights that much of the Bill of Rights of the Constitution is founded. The principal author of the Bill of Rights, however, was James Madison.
All early Americans with any serious interest in politics knew something about the English Bill (or Declaration) of Rights of 1688. But, as in many other matters, American leaders tended to be influenced more by recent or colonial American precedents and example than by those from British history. John Adams and Thomas Jefferson both earnestly supported the idea of a national bill of rights, and so did many other leading men.
We shall now examine those ten amendments, one by one, with a view to grasping their original purpose or meaning. For people of our time, the phrases of those amendments, like the phrases of the original Seven Articles of the Constitution, sometimes require interpretation. What did those words mean, as people used them near the end of the eighteenth century? One way to find out is to consult the first great dictionary of the English language, Samuel Johnson’s, published at London in 1775 or, later, Noah Webster’s American Dictionary of the English Language (1828). It is important to understand precisely, so far as possible, the meanings intended by the men (chiefly James Madison and George Mason) whose phrases are found in the Bill of Rights, because many important cases of constitutional law that affect millions of Americans are today decided on the presumed significance of certain phrases in the Bill of Rights. As the English jurist Sir James Fitzjames Stephen wrote in Victorian times, “Words are tools that break in the hand.” We therefore need to define the concepts which lie behind the words of the Bill of Rights.
|Amendment||Bill of Rights Guarantees||First Document Protecting||First American Guarantee||First Constitutional Guarantee|
|Source: Bernard Schwartz, The Roots of the Bill of Rights. Vol. 5 (New York: Chelsea House Publishers, 1980), 1204.|
|I||Establishment of religion||Rights of the Colonists (Boston)||Same||N.J. Constitution, Art. XIX|
|Free exercise of religion||Md. Act Concerning Religion||Same||Va. Declaration of Rights, S. 16|
|Free speech||Mass. Body of Liberties, S. 12||Same||Pa. Declaration of Rights, Art. XII|
|Free press||Address to Inhabitants of Quebec||Same||Va. Declaration of Rights, S. 12|
|Assembly||Declaration and Resolves, Continental Congress||Same||Pa. Declaration of Rights, Art. XVI|
|Petition||Bill of Rights (1689)||Declaration of Rights and Grievances, (1765), S. XIII||Pa. Declaration of Rights, Art. XVI|
|II||Right to bear arms||Bill of Rights (1689)||Pa. Declaration of Rights, Art. XIII||Same|
|III||Quartering soldiers||N.Y. Charter of Liberties||Same||Del. Declaration of Rights, S. 21|
|IV||Searches||Rights of the Colonists (Boston)||Same||Va. Declaration of Rights, S. 10|
|Seizures||Magna Carta, c. 39||Va. Declaration of Rights, S. 10||Same|
|V||Grand jury indictment||N.Y. Charter of Liberties||Same||N.C. Declaration of Rights, Art. VIII|
|Double jeopardy||Mass. Body of Liberties, S. 42||Same||N.H. Bill of Rights, Art. XVI|
|Self-incrimination||Va. Declaration of Rights, S. 8||Same||Same|
|Due process||Magna Carta, c. 39||Md. Act for Liberties of the People||Va. Declaration of Rights, S. 8|
|Just compensation||Mass. Body of Liberties, S. 8||Same||Vt. Declaration of Rights, Art. II|
|VI||Speedy trial||Va. Declaration of Rights, S. 8||Same||Same|
|Public trial||West N.J. Concessions, c. XXIII||Same||Pa. Declaration of Rights, Art. IX|
|Jury trial||Magna Carta, c. 39||Mass. Body of Liberties, S. 29||Va. Declaration of Rights, S. 8|
|Cause and nature of accusation||Va. Declaration of Rights, S. 8||Same||Same|
|Witnesses||Pa. Charter of Privileges, Art. V||Same||N.J. Constitution, Art. XVI|
|Counsel||Mass. Body of Liberties, S. 29||Same||N.J. Constitution, Art. XVI|
|VII||Jury trial (civil)||Mass. Body of Liberties, S. 29||Same||Va. Declaration of Rights, S. 11|
|VIII||Bail||Mass. Body of Liberties, S. 18||Same||Va. Declaration of Rights, S. 9|
|Fines||Pa. Frame of Government, S. XVIII||Same||Va. Declaration of Rights, S. 9|
|Punishment||Mass. Body of Liberties, S. 43, 46||Same||Va. Declaration of Rights, S. 9|
|IX||Rights retained by people||Va. Convention, proposed amendment 17||Same||Ninth Amendment|
|X||Reserved Powers||Mass. Declaration of Rights, Art. IV||Same||Same|
Another way to ascertain what the framers of the Bill of Rights intended by their amendments, and what the first Congress and the ratifying State legislatures understood by the amendments’ language, is to consult Sir William Blackstone’s Commentaries on the Laws of England (1765), and the early Commentaries on the Constitution (1833) and Commentaries on American Law (1826), written, respectively, by Joseph Story and James Kent. As eminent judges during the early decades of the Republic, both Story and Kent were more familiar with the constitutional controversies of the first five presidential administrations than any judge or professor of law near the close of the twentieth century can hope to be.
The comments on the Bill of Rights that follow are based on such sources of information, and also on the books, letters, and journals of political leaders and judges from 1776 to 1840.
It should be noted, moreover, that the Northwest Ordinance of 1787 also sheds light on the ideas and ideals of the generation that drafted the Constitution and the Bill of Rights. Passed by the Continental Congress on July 13, 1787, while the Federal Convention was meeting in Philadelphia, the Northwest Ordinance was later affirmed by the first Congress under the new Constitution. Its purpose was to provide a frame of government for the western territories that later became the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin.
The Ordinance has been called our first national bill of rights, or “the Magna Charta of American Freedom.” The great American statesman Daniel Webster said he doubted “whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787.” In addition to protecting many civil liberties that later appeared in the Bill of Rights, the Northwest Ordinance also banned slavery in the Northwest Territory. The wording of the Thirteenth Amendment (1865) providing for the abolition of slavery in the United States was taken directly from the Northwest Ordinance. On the subject of religion, the ordinance provided that “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in said Territory.” The Ordinance also declared as a matter of public policy that because “Religion, morality, and knowledge, [are] necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.
The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.
The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.
In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.
Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.
The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.
In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.
During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.
The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.
As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.
The Constitution recognizes no “absolute” rights. A Justice of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.
The Second Amendment: The Right to Bear Arms
This amendment consists of a single sentence: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.
The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.
The Third Amendment: Quartering Troops
Forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war, was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.
The Fourth Amendment: Search and Seizure
This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.
Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping.
The Fifth Amendment: Rights of Persons
Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law” and the public authorities may not take private property without just compensation to the owner.
The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth”—that is, refuses to answer questions in a court because his answers might incriminate him—thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.
The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, that “hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.
The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.
The Sixth Amendment: Rights of the Accused
Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases the right of the accused “to be informed of the nature and cause of the accusation” also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.
These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”
The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”
The Seventh Amendment: Trial by Jury in Civil Cases
This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute.
The Eighth Amendment: Bail and Cruel and Unusual Punishments
How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.
Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.
As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.
The Ninth Amendment: Rights Retained by the People
Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all? Does a civil right have to be written expressly into the Constitution in order to exist? The Seven Articles and the first eight amendments say nothing, for example, about a right to inherit property, or a right of marriage. Are, then, rights to inheritance and marriage wholly dependent on the will of Congress or the President at any one time?
The Federalists had made such objections to the very idea of a Bill of Rights being added to the Constitution. Indeed, it seemed quite possible to the first Congress under the Constitution that, by singling out and enumerating certain civil liberties, the Seven Articles and the Bill of Rights might seem to disparage or deny certain other prescriptive rights that are important but had not been written into the document.
The Ninth Amendment was designed to quiet the fears of the Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgment and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.
Written to serve as a general principle of construction, the Ninth Amendment declares that “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The reasoning behind the amendment springs from Hamilton’s 83rd and 84th essays in The Federalist. Madison introduced it simply to prevent a perverse application of the ancient legal maxim that a denial of power over a specified right does not imply an affirmative grant of power over an unnamed right.
This amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the “right of privacy,” over which Federal courts may establish jurisdiction. It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the Federal government, not to expand them.
The Tenth Amendment: Rights Retained by the States
This last amendment in the Bill of Rights was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution. Throughout the country, the basic uneasiness with the new Constitution was the dread that the Federal government would gradually enlarge its powers and suppress the States’ governments. The Tenth Amendment was designed to lay such fears to rest.
This amendment was simply a declaration that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States.
The amendment declares that powers are reserved “to the States respectively, or to the people,” meaning they are to be left in their original state.
It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.
During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937, however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had.
Rights Versus Duties
Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.
In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.
With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.
If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.
If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately—not abusing this freedom for personal advantage or vengeance.
If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.
If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.
If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.
If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.
If one is entitled to rights, one has the duty to support the public authority that protects those rights.
For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal.
Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans. Did they succeed? At the end of two centuries, the Constitution of the United States still functions adequately. Had Americans followed the French example of placing all their trust in a naked declaration of rights, without any supporting constitutional edifice to limit power and the claims of absolute liberty, it may be doubted whether liberty, order, or justice would have prevailed in the succeeding years. There cannot be better proof of the wisdom of the Framers than the endurance of the Constitution.
The History of the Sixth and Fourteenth Amendments and Your Rights
It is very important to understand your rights and what each amendment means so that you can protect yourself against law enforcement officer acting illegally. The sixth and fourteenth amendments provide information regarding your rights in a criminal trial. The Sixth Amendment states “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” Whereas the Fourteenth amendment states “…nor shall any State deprive any person of life, liberty, or property, without due process of law….” The sixth amendment guarantees the defendant an attorney to represent them during their trial. It also ensures that if the defendant is unable to afford an attorney then the defendant is provided with one at no cost. The defendant also has the right to hire an attorney at every point of the case, not just during the trial. Many requests for an attorney and remain quiet when police question them.
Gideon v. Wainwright is a 1963 Supreme Court case that challenged the government, by stating that everyone has the right to representation before and during their criminal trial.
Gideon had been arrested by police after he was found near a crime scene. He was charged with the crime of breaking and entering, and with intent to commit theft. Gideon was unable to afford a lawyer, so begged the court in Florida to name him. He said that it was his sixth amendment right and that he had the right to counsel as does anyone. He was denied counsel since only appointment of counsel for capital offense was required at the time in Florida state law. He was convicted and sent to jail for five years because he was forced to defend himself and serve as his own attorney because the state refused him a lawyer.
Gideon filed a habeas corpus petition after he was convicted, claiming he had been wrongly sentenced. Habeas corpus is defined as “the right to due process of the law and to know why one is being held in prison.” Gideon said he’d been denied habeas corpus, due process, and counsel. Gideon, who had little experience with the law, was asked to defend himself in court, which finally led to his arrest. Gideon began another lawsuit with the U.S. Supreme Court, and the Supreme Court agreed to look into the case. Gideon argued that the Sixth Amendment rights should be applicable for defendants in state courts. The Supreme Court had to decide whether or not the sixth amendment provided a fundamental right, and if the right of counsel should be paid for by the government in state level criminal cases.
Imagine yourself having to go to court and collect evidence, create an opening and closing statement knowing your fate was entirely in your hands. You didn’t have an experienced criminal lawyer to help guide you and prepare you for your upcoming court date. The criminal justice system draws in many people from different walks of life. However, those who are from lower-socio-economic lifestyles are at a disadvantage due to lack of resources, lack of homes, food, and more. Everyone in the United States deserves someone who can defend them and this is why Gideon v Wainwright was so crucial.
Having an attorney is crucial in a trial. An attorney will assist the defendant in many different things. They will advise and explain their rights and walk them through the many steps of the criminal process. Some citizens do not know all their rights and the details of the law. That is why it is so important that every defendant have access to an attorney. It prevents defendants from having their constitutional rights violated by law enforcement. An experienced criminal defense attorney will help the defendant negotiate if that is their goal. Having an attorney can extremely help a defendant negotiate a plea bargain.
The Sixth Amendment, or Amendment VI of the United States Constitution is the section of the Bill of Rights that guarantees a citizen a speedy trial, a fair jury, an attorney if the accused person wants one, and the chance to confront the witnesses who is accusing the defendant of a crime, meaning he or she can see who is making accusations. The Sixth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by 9 out of 12 states on December 15, 1791.
Understanding the Sixth Amendment Line by Line
If you are confused by what each line means, here are some good explanations to make the Sixth Amendment easier to understand:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”: The person who is accused of a crime has the right to get a quick trial. This line does not mean that the person’s trial will be over in one week. Rather, this line means that the country or state cannot make the person sit in jail for a very long time, for example 5 years, while they for their trial. This would be very unfair to anyone who is not guilty. The person who is accused also has the right to receive a public trial. The state cannot lock the person away and ask questions about the crime. This process must be seen by the public so that it more fair to the accused person.
“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”: The trial has to have an impartial jury. This means that the jurors cannot be prejudiced or biased against the accused individual or the specific crime that the individual has been accused of, or it would be unfair to the accused. The trial also must be held in an area where the crime took place, or else it may also be unfair to the accused.
“And to be informed of the nature and cause of the accusation to be confronted with the witnesses against him”: The accused person has the right to find out what he or she is being charged with exactly and why he or she is being held in jail. The accused person also has the right to learn who is claiming that he or she committed the crime, along with the right to ask questions.
“To have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense”: The accused person has the right to make anyone attend their trial if they believe that person can help with the case. The court can also force a person to come to a court by using a summons, which means the person will not have choice, and will have to go to the trial. The accused person also has the right to hire an attorney. If he or she cannot afford an attorney, the court can provide one
The Twenty-Sixth Amendment, 1971
“Old enough to fight, old enough to vote” was the rallying cry for lowering the voting age from twenty-one to eighteen. A first attempt during World War II, when the draft age was lowered to eighteen, was unsuccessful but during the war in Vietnam the issue gained momentum again, led by young people themselves.
Buttons supporting the Twenty-Sixth Amendment
In 1970 congressional supporters changed the voting age in an amendment to the extension of the Voting Rights Act. When the Supreme Court ruled it applied only to federal elections, a constitutional amendment became the inevitable next step as states confronted the alternative of administering two sets of rules for state and federal elections. The Twenty-Sixth Amendment establishing eighteen as the legal voting age was ratified in 1971.
Amendment VI - History
The 16th Amendment allows Congress to tariff an income tax without basing it on population or dividing it up among the states. The amendment is the constitutional law empowering the government to levy income taxes on Americans. Despite the fact that income taxes were implemented at different times in history, the laws were temporary and involved a national emergency. When the Sixteenth Amendment was adopted, the federal government was given more political power to set up the current form of taxation. This amendment was ratified on Feb 3, 1913.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
History behind the Amendment
In the U.S, the Treasury Department used to rely on sales taxes and tariffs for the majority of the federal budget. This continued to be the case until 1861, when President Abraham Lincoln instituted an income tax. With this, the initiative of taxes on wages gained reliability for funding portions of the government. At that time, President Lincoln needed more source of funds for the Civil War therefore, Congress approved a progressive tax. The first income tax for individuals earning between $600 and 10,000 was 3%, while those who earned more than that garnered a greater percentage. This taxation ended in 1872.
The income tax was re-authorized by Congress in 1894, with a 4% tax on people earning more than $4,000. In the Pollock vs. Farmers’ Loan and Trust Co., Supreme Court Judges ruled that the income tax was not constitutional. In this case, the plaintiffs argued that taxing real-estate rental revenue was a direct tax and that the income tax should be removed. To avoid any other Supreme Court challenges, Congress proposed an amendment for income tax in the Constitution in 1909. The debate revolved around whether to have income tax or to impose tariffs on imports to collect subsidy for the Treasury. Democrats and Progressives proposed the initiative of taxing incomes while Conservatives disapproved this. Since the Conservatives knew that three quarters of the states would ratify the amendment, they approved the proposal to allow legislatures from the states to vote on the new amendment.
On July 2, 1909, the 16th Amendment was authorized and then got ratification from the states on February 3, 1913. The income tax law became official on Feb 25, 1913 after the results of the ratification were certified by the Secretary of State. According to the Secretary of State and the U.S government Printing Office, the law got enough votes to ratify the Revenue Act 1913. This Act became the 16th Amendment. People making more than $500,000 in a year were taxed 7% of their income.
Effects of the Amendment
When the amendment became law in 1913, it clashed with a previous judicial decision in 1895 where the Supreme Court justices ruled that direct taxes were illegal. However, since the amendment was adopted, the case’s decision was effectively overturned.
Since the 16th Amendment was passed through the necessary steps before becoming a constitution law, the federal government was permitted to impose taxes on its citizens and people who earned wages. Since the adoption of the Sixteenth Amendment, the Bureau of Internal Revenue (BIR) was changed into Internal Revenue Service. The Internal Revenue Service was given power to enforce taxation law.
Up to date, there are still some debates on whether the 16th Amendment is constitutional or not. America’s Founding Fathers who designed the constitution wanted the power between the federal government and the states to be balanced. Therefore, the national government was not allowed to collect taxes from individuals directly. This means that the government could still collect revenue from the states in accordance to population, but it would leave the method of collection to the states. The federal government would use other methods which were less intrusive such as excise taxes, tariffs, and consumption taxes. This way the amount that the government could collect by its own authority was limited.
Most of the Founding Fathers did not like the idea of taxing individuals. In fact, the taxing of individuals was regarded as a last resort option and could only be implemented during war or other emergencies. It was not until during the Civil War that the first income tax was imposed, and it was repealed soon afterwards. When the Amendment was adopted in 1913, it only applied to 2 percent of the labor force, with the highest rate being 7%. This primed the way for the government’s unlimited access to revenue. This way, the government is able to fund important programs including education, law enforcement, and healthcare.
An Originalist Argument for a Sixth Amendment Right to Competent Counsel
More than twenty years ago, Professor Bruce Green argued that an original understanding of the word “counsel” for purposes of the Sixth Amendment (at least in capital cases) should include only those lawyers qualified to serve as defense counsel. 1 Since that time, the Court not only has accepted original arguments regarding the meaning of certain Sixth Amendment phrases, but also has significantly reformulated Sixth Amendment doctrine as a result. 2 The Court’s recent willingness to entertain arguments regarding the original meaning of the Sixth Amendment’s text provides a timely opportunity to revisit Professor Green’s definition of counsel and to explore the effect that definition would have on the standard for ineffective assistance of counsel set forth in Strickland v. Washington. 3
In the past decade, the Court has repeatedly emphasized the importance of original meaning in determining (or redefining) the parameters of the Sixth Amendment rights to confront witnesses and to be tried before a jury. 4 This shift to originalist analysis has required that the Court completely change the doctrine in each of these Sixth Amendment areas. 5 Symmetry of logic suggests that the Court may bring a similar originalist perspective to the Sixth Amendment’s “assistance of counsel” guaranty. 6
As it turns out, however, the existing historical account of the English right to counsel is incomplete. This Essay offers a new account, arguing that any assessment of the original meaning of the right to counsel must focus on the Treason Act of 1696. Consideration of that Act suggests that the Sixth Amendment right to the “assistance of counsel” may well be more robust than the Court has previously recognized. In particular, although the Court perhaps should maintain a Strickland-like framework for Due Process claims, the Sixth Amendment right to counsel should encompass the right to be represented by experienced defense counsel. 7
I. The English History of Counsel in Criminal Cases
Where should one look to unearth the original meaning of our Constitution’s safeguard of the right to counsel? The colonial practice has received some scholarly attention, 8 as have some aspects of English law in the period leading up to the ratification of the Sixth Amendment. 9 But English practice under the Treason Act of 1696 has received almost no consideration by scholars addressing the Sixth Amendment right to counsel. This omission is significant because that Act was the one and only statute that guaranteed a right to counsel in England prior to the adoption of the Bill of Rights. 10 To be sure, scholars have composed detailed histories of Parliament’s passage of the Treason Act of 1696 and the impact that Act had on English criminal procedure in non-treason felony cases. None of this scholarship, however, has focused on how the Treason Act may have informed the thinking of late eighteenth-century Americans about the meaning of the right to counsel. This Part will summarize the history of the Treason Act of 1696 and the impact the Act had on criminal procedure in non-treason felony cases in England.
A. The Historical Context of the Treason Act of 1696
Prior to the eighteenth century, English law prohibited counsel from appearing in any felony criminal cases (unless the court, in its discretion, permitted counsel to appear), and until the middle of the eighteenth century, judges regularly denied felony defendants the opportunity to be represented by counsel. 11 In other words, felony defendants had to represent themselves. 12 The first exception to this prohibition on counsel in felony cases came when Parliament passed the Treason Act of 1696. 13
Understanding the significance of the Act requires an understanding of the historical context in which it was adopted. In seventeenth century England, both prominent political parties of the day—the Whigs and Tories—used treason prosecutions as a political tool against each other. 14 Before the Revolution of 1688—the so-called “Glorious Revolution”—which resulted in the overthrow of King James II, the Stuart regime used treason laws to arrest, try, and execute many members of the radical Whig opposition movement, including Lord William Russell and Algernon Sydney. 15 Indeed, many of the practices in treason cases in the late seventeenth Century were carried over from the notorious Star Chamber, which subjected treason defendants to a “disregard of basic individual rights.” 16 The Star Chamber was abolished in 1641, but the Crown continued to bring treason prosecutions against those who made statements against the King, and it offered virtually no protections to defendants in those cases. Of particular importance, defense counsel were permitted only at the discretion of the court even though the Crown generally was represented by a lawyer. 17 Because both Tories and Whigs endured the injustices of treason prosecutions, both parties sensed the need for reform.
In 1688, the Whigs joined forces with some Tories to overthrow King James II and to install William of Orange and his wife Mary (the daughter of James II) as the King and Queen. 18 As a result, Parliament gained significantly more power than it had had under King James II. 19 With that power, Parliament quickly tried to limit the extent to which political opponents could use treason charges to persecute each other.
Reformers identified many problems with the prosecution of treason cases, including: (1) the expansive definition of treason to include “treason by words” (essentially libel) (2) blatant perjury by witnesses and (3) the lack of impartiality on the part of judges, who strongly favored the Crown. 20 Also problematic was the inability of treason defendants to make use of counsel. The lack of counsel in treason cases was particularly problematic for two reasons. First, the crime of treason had become very legally complex (far above the comprehension of lay defendants). Second, the Crown was represented by counsel in treason cases, unlike in most other felony prosecutions. 21 In the period following the Glorious Revolution, reformers tried to gain greater protection for treason defendants. 22 Those early reform efforts failed, however, at least in part because some Whigs believed that the Revolution would remove the conditions that had produced past abuses. 23
Several treason trials in the 1690s showed that those hopes were misplaced. 24 The result was the Treason Act of 1696, which provided broad access to counsel in treason cases. 25 The Act initially specified that every person charged with treason “shall bee received and admitted to make his and their full Defence by Counsel learned in the Law.” 26 The reference to “full defence” made clear that counsel could participate in all aspects of representation, arguing both facts and law for the defendant. 27 This textual protection marked a significant step because Parliament did not protect assistance of counsel on both factual and legal grounds in non-treason felony cases until well into the 19 th century.
More remarkable for its time, the Act went on to state that if any treason defendant “shall desire Counsel the Court before whom such Person . . . shall bee tryed . . . shall and is hereby authorized and required imediately upon his . . . request to assigne to such Person . . . such and soe many Counsel not exceeding Two as the Person or Persons shall desire.” 28 Although there is not extensive documentation of treason prosecutions in the 18 th century, anecdotal evidence suggests that treason defendants had counsel in reported cases. 29 Indeed, there is at least one example of a judge appointing two lawyers to an indigent treason defendant—James Hadfield—upon the defendant’s request that those specific attorneys represent him. 30
Although the Treason Act clearly guaranteed defendants an unprecedented right to counsel, the precise meaning of “counsel” in the Treason Act is less clear. Dictionaries of the time defined “counsel” as “an Advocate or Counsellour, one who pleads for his Client at the Bar of a Court of Justice,” 31 and “bar” was defined as “the Place where Lawyers Stand to Plead Causes in Courts of Judicature.” 32 At the very least, then, the phrase “assistance of counsel” encompassed the right to be represented by a lawyer admitted to the Bar.
What kind of proficiency was expected of these lawyers? Anecdotal evidence suggests that the attorneys representing treason defendants after the passage of the Treason Act of 1696 had broad experience in the law, and in particular often had significant experience representing treason defendants. For instance, Lord Thomas Erskine, one of the most successful barristers of his day who would later become the Lord Chancellor in the Ministry of All Talents, represented many treason defendants, including William Davis Shipley on seditious libel charges, Lord George Gordon for his role in the riots of 1780, Thomas Paine and other radical society members, and James Hadfield. 33 Of particular note, Erskine represented James Hadfield after Hadfield, who was indigent, requested that Erskine represent him and the presiding judge so ordered. 34 Similarly, John Hungerford, a Tory politician, represented four defendants charged with treason, including George Purchase on appeal of a treason conviction Francis Francia in 1717 John Matthews, charged in 1719 with treason for printing a libel against the King and Christopher Layer in 1722. 35 In short, many of the lawyers representing treason defendants after passage of the Act stood at the highest levels of the Bar and gained significant experience in those cases. 36 It appears, then, that by guaranteeing the right to “Counsel learned in the Law,” 37 the Treason Act in practice provided defense by an experienced practitioner knowledgeable in the area of law in which he was to represent the defendant.
B. Effect of the Treason Act
Beyond its direct impact on treason cases, the right to counsel guaranty of the Treason Act influenced the development of right to counsel both in non-treason felony cases in England and, of most importance, in the Sixth Amendment. To be sure, the Treason Act protected only a relatively small subset of felony defendants. 38 And many (although certainly not all) treason defendants were political elites, so it is entirely possible that post-Act treason defendants attracted high quality lawyers precisely because they were wealthy and charged with political crimes. 39 Lessons from the Treason Act therefore may not necessarily apply across the spectrum of all felony cases.
That fact notwithstanding, the Treason Act appears to have set the course for a broader right to counsel both in England and in the colonies. Although Parliament did not provide felony defendants with a right to counsel until 1836, by the 1730s, many courts in England exercised their discretion to allow counsel to appear for felony defendants. 40 The Treason Act’s right to counsel guarantee appears to have prompted the trend towards permitting representation by counsel in felony cases. 41 In general, counsel in felony cases played a more limited role than in treason cases. In particular, although counsel could address questions of law and cross-examine witnesses, they could neither discuss facts nor address the jury in argument or present a defense. 42 Because the role of counsel in England appears to have been much more limited than in at least some of the colonies, some scholars have argued that the framers of the Constitution did not look to England in protecting the rights of the defendant under the Sixth Amendment. 43 But this position ignores the Treason Act and the broad conception of the right to counsel to which it gave rise.
There is, moreover, at least some evidence suggesting that the Treason Act influenced the colonists and, later, the drafters of the Bill of Rights. First, there is reason to believe that Americans during and after the Revolution would have known of, and reacted to, the experience of defendants in treason trials in particular. For instance, Thomas Paine—the leading popular theorist of the American Revolutionary movement—had been prosecuted for treason in England. 44 No less important, in debating a number of provisions of the Constitution, the Framers specifically focused on the use of treason prosecutions to quell dissenting speech. 45
Second, both colonial history and post-Revolutionary experience demonstrate the influence of the Treason Act. As scholars have noted, many colonies and later states guaranteed the right to counsel in their state charters or by statute prior to the date on which Parliament guaranteed the right to counsel in non-treason felony cases. 46 The path of the colonies, and ultimately the Constitution, therefore appears to have hewed more closely to the Treason Act than the right in English courts as a general matter. 47
Third, the Treason Act laid the foundation for other Sixth Amendment rights. 48 In addition to the counsel guarantee, the Treason Act required (1) that any prosecution be commenced with an indictment, and (2) that defendants have a right to “compell their Witnesses to appeare for them att any such Tryal or Tryale as is usually granted to compell Witnesses to appeare against them.” 49 The Bill of Rights provided these very same protections in the Fifth 50 and Sixth 51 Amendments, respectively. And although, unlike with the right to counsel, Parliament acted relatively quickly after the Treason Act to extend at least the right to compulsory process to all felony cases, 52 the Treason Act provided the first English basis for both of these criminal process guarantees.
Nor are the parameters of the right to counsel that arise from incorporating practice under the Treason Act anomalous. As Professor Green sets forth in his history of counsel in this country prior to 1791, the “critical distinguishing feature” of counsel in 1791 “was not the receipt of authorization to appear before the court” or the obtaining of a license to do so. 53 Instead, “the distinguishing characteristic of licensed practitioners in 1791 was that they were qualified, by virtue of their legal knowledge and good character, to practice competently before the courts.” 54 The Treason Act history described above therefore buttresses this argument that the right to counsel guaranteed by the Sixth Amendment encompassed the right to a competent legal representative.
Two potential counterarguments to this interpretation of the Sixth Amendment merit a response. First, although the Treason Act may have led to the appointment of well-qualified lawyers, the language of the Treason Act contains a critical phrase missing from the Sixth Amendment. Recall that the Treason Act required the court, upon request by the defendant, to assign “such and soe many Counsel not exceeding two as the Person or Persons shall desire.” 55 This phrase appears to have required court to accede to the defendant’s choice of counsel. Because that critical phrase does not appear in the Sixth Amendment, one could argue that practice under the Treason Act has no relevance to the Sixth Amendment.
Such an argument, however, misses the key point that the Act created an understanding about the law’s commitment to representation by skilled attorneys. Allowing treason defendants to select their lawyers was one way to ensure skillful representation. But the point of continuing salience is that the law embodied a commitment to this end—and that the law in fact operated to provide qualified lawyers.
Second, some might argue that the Treason Act represents just one very specialized statute with limited application that ultimately tells us nothing about the meaning of the Sixth Amendment. But as discussed above, the Act was a known and often-used statute. 56 Perhaps of most importance, it constitutes the only statute that required counsel in pre-Constitution England.
The historical record of the passage of the Treason Act, its operation in England, and its influence on the fledgling colonies and later the states provide persuasive evidence that the right to counsel the Framers conceived incorporated a conception of “counsel” that included experience in matters as to which the lawyer’s work pertained. Particularly in conjunction with the arguments marshaled by Professor Green regarding what “counsel” meant in the states in 1791, the Sixth Amendment guarantee of the “right to counsel” encompasses not just access to a licensed lawyer but also representation by knowledgeable counsel.
II. The Inconsistency Between the Historical Understanding and Current Doctrine
That leads to the question whether the Court’s Sixth Amendment right to counsel doctrine is consistent with the right guaranteed by the Treason Act. I think the answer to that question is no, primarily because the right to counsel provided by current Sixth Amendment law guarantees only a right to an attorney who does not make egregious errors rather than representation by knowledgeable counsel. 57 The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” 58 In right to counsel cases, the Court’s focus has been limited to whether (1) a lawyer was provided, and (2) a lawyer assured that the defendant received a minimally fair trial. But the Sixth Amendment right to counsel operates independently of whether the defendant received a fair trial. Instead, the fair trial protection is a bedrock protection provided not by the Sixth Amendment but by the Fifth Amendment (and Fourteenth Amendment) Due Process Clause. This Part sets forth the current framework for right to counsel claims and identifies the ways in which this framework is inconsistent with the original meaning of the right to counsel.
Twenty years after Gideon, the Court issued its key decision governing the quality of counsel guaranteed by the Constitution. In Strickland v. Washington, the Court held that the Sixth Amendment’s right to the “assistance of counsel” requires not only that a lawyer appear for the defendant, but also that the lawyer provide “effective” assistance of counsel. 59 The Court explained that if counsel’s performance “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” the defendant is entitled to reversal. 60 The Court then went on to articulate a standard for proving ineffectiveness that has proven to be virtually impossible to meet: a defendant must establish both that counsel performed deficiently and that counsel’s errors affected the outcome of the proceedings, the so-called “prejudice” inquiry. 61
In defining the practical operation of the Sixth Amendment, Strickland is probably no less important than Gideon. In striking contrast to Gideon, however, Strickland has not been celebrated but instead has endured extensive criticism. 62 Much of the critique stems from the fact that the Court’s focus on the accuracy of the verdict—highlighted by its emphasis on reliability—essentially precludes relief unless the defendant can establish the likelihood that he would have been acquitted at trial had he received proper representation. 63 The Court, moreover, has set a nearly impossible standard for showing deficient performance, emphasizing that even a lawyer with no trial experience can meet the standard for effective assistance of counsel. 64 The Strickland Court’s emphasis on counsel’s effect on the fairness and accuracy of the proceedings may make sense as a Due Process matter. 65 But because the Court decided Strickland as a matter of the Sixth Amendment right to counsel, it has come to define the scope of the right to the “assistance of counsel.”
But the accuracy or reliability of the trial has no connection to the historical basis for the Sixth Amendment guarantee, particularly in light of lessons derived from the Treason Act of 1696. That Act, after all, did not concern itself with assuring a minimum level of fairness in discrete cases. 66 Rather, it focused on ensuring the availability of well-qualified and experienced counsel in across-the-board fashion. 67
An example serves to illustrate the effect of Strickland’s confusion of the Fifth and Sixth Amendments. Until recently, the Southern District of Georgia required every attorney who joined the bar of that court to agree to represent criminal defendants under the Criminal Justice Act. 68 For instance, a lawyer specializing in bankruptcy who joined the Southern District Bar in order to file bankruptcy cases could be obligated to serve as defense counsel in criminal cases. Suffice it to say that representation by a bankruptcy lawyer with no experience in a criminal case is not analogous to the practice under the Treason Act, and thus—in light of the Act’s importance to the founding generation—was not the sort of practice anticipated by the Framers of the Sixth Amendment. 69 As a result, the appointment of such a lawyer should, on originalist grounds, be held to violate the Sixth Amendment right to counsel in the vast majority of criminal cases. 70
The essential difficulty is that a lawyer’s inexperience in criminal cases does not necessarily render that lawyer ineffective under the Strickland standard. 71 For instance, the Court has held that a relatively inexperienced real estate attorney can provide effective assistance under the Strickland standard. 72 And this is so even though the risks associated with inexperienced defense counsel have been greatly magnified by changes over the past two centuries that have rendered modern criminal law practice a highly specialized endeavor that requires mastery of complex bodies of law such as federal and state sentencing guidelines Fourth, Fifth, and Sixth Amendment jurisprudence and massive criminal codes. 73 Even if the defendant can establish an inexperienced lawyer’s deficient performance, unless she has persuasive evidence of a defense that should have been presented at trial or a sentencing claim that would have prevailed, moreover, she cannot prevail on an ineffective assistance of counsel claim under Strickland. 74
A lawyer who has not previously represented a defendant in any criminal case may be able to eke out a sufficient performance to meet the minimum requirements imposed by Strickland. 75 But if the Framers intended that the Sixth Amendment right to counsel mirror the right to counsel provided by the Treason Act of 1696—namely, by ensuring representation by a suitably qualified attorney—such representation would fall far short of that guarantee, regardless of the purported accuracy of the result in any particular defendant’s case.
III. An Originalist Sixth Amendment Standard
If the right to “assistance of counsel” under the Sixth Amendment means something more than the right to have a lawyer—in other words, if the right encompasses the right to qualified counsel—then a court violates the defendant’s Sixth Amendment right to counsel when it appoints, to represent him, a lawyer unversed in criminal law. In this way, the Sixth Amendment, properly understood, shifts the responsibility for providing competent representation back to the state rather than placing the burden of proving ineffective assistance on the defendant.
Of course, the Court would have to determine the precise standard for identifying a properly qualified lawyer. At the very least, however, the outside limits of that standard could be readily ascertained: In felony cases, lawyers with no experience in criminal cases could not provide the “assistance of counsel” guaranteed by the Sixth Amendment. 76
Two objections to requiring qualified lawyers deserve response. First, some may argue that this standard is impractical. After all, defense counsel need to gain experience somewhere. 77 How can defense lawyers gain that experience? There are a number of ways that a lawyer could get the necessary experience. For instance, law students who know they want to practice criminal law could participate in a criminal justice clinic during which they could either try a case under the supervision of a practicing lawyer or assist in the trial of a case. Similarly, new public defenders could second-chair cases being handled by a more senior attorney. 78 Lawyers with no criminal experience, however, could not meet the Sixth Amendment standard for a routine felony case. 79
Second, what should happen with criminal defendants who wish to hire an inexperienced attorney? Defendants, of course, can waive virtually all of the rights guaranteed by the Constitution, including the right to counsel itself. 80 Accordingly, so long as a defendant waives the Sixth Amendment right to be represented by counsel, the defendant could hire an inexperienced lawyer. In short, any practical objections to requiring qualified counsel are surmountable.
Because the history of the Sixth Amendment provides persuasive evidence that the Framers used the word “counsel” to encompass only competent, qualified lawyers, the Court should adopt a new framework, protecting the right to representation by a qualified or competent advocate under the Sixth Amendment, and, assuming representation by constitutionally adequate counsel, assessing the performance of that counsel under the Due Process Clause.
. See Bruce A. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 Iowa L. Rev. 433 (1993).
. See, e.g., Blakely v. Washington, 542 U.S. 296, 313–14 (2004) (holding that the Sixth Amendment requires that facts that raise the maximum sentence under the guidelines must be proven to the jury) Crawford v. Washington, 541 U.S. 36, 51 (2004) (drawing on the history of the Confrontation Clause to hold that the word “witnesses” for purposes of the Sixth Amendment’s Confrontation Clause encompasses those who “bear testimony” against defendants) Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Geo. L.J. 183 (2005).
. Strickland v. Washington, 466 U.S. 668 (1984).
. See, e.g., Giles v. California, 554 U.S. 353, 359–61 (2008) (setting forth the practice at the time the Bill of Rights was ratified in limiting the forfeiture by wrongdoing exception to the Confrontation Clause to instances when the defendant intended to cause the witness to be unavailable) Blakely, 542 U.S. 296 (defining the “elements” of an offense that must be proven to a jury by reference to historical practices) Crawford, 541 U.S. at 51 (defining the meaning of the word “witnesses” for purposes of the Sixth Amendment’s Confrontation Clause with reference to the historical meaning of the word) Apprendi v. New Jersey, 530 U.S. 466, 478–80 (2000) (reviewing history in England and during the founding years here to reject the state’s distinction between elements of the offense and sentencing factors).
. Crawford is perhaps the best example of that, rejecting the balancing framework set forth in Ohio v. Roberts, 448 U.S. 56 (1980) and holding that testimonial statements are categorically barred by the Confrontation Clause. To be sure, the Court’s historical account of the Confrontation Clause has been the subject of excoriating academic criticism. See Randolph N. Jonakait, The Too-Easy Historical Assumptions of Crawford v. Washington, 71 Brook. L. Rev. 219 (2005). But Crawford’s doctrine nonetheless has survived.
. There are certain cases that are so “watershed” and have become so ingrained in American culture that the Court likely could not abandon them. Described as a “watershed” constitutional rule, Gideon is perhaps the most widely acknowledged example of untouchable precedent. See, e.g., John H. Blume & Sheri Lynn Johnson, Gideon Exceptionalism?, 122 Yale L.J. 2126, 2131 (2013) (noting that “Gideon is the only decision ever cited by the Supreme Court as an example of the kind of watershed rule of criminal procedure that so implicates fundamental fairness as to require retroactive application in habeas corpus”). But other than Gideon, very little of the Sixth Amendment right to counsel doctrine likely falls in that category.
. Professor George Thomas also has argued that Strickland’s framework is inconsistent with the historical meaning of counsel in England. See George C. Thomas III, History’s Lesson for the Right to Counsel, 2004 U. Ill. L. Rev. 543, 570 (arguing that “counsel” in the colonial period encompassed the role of the attorney as specialized advisor, rather than the attorney as alter ego to the defendant).
. See, e.g., William M. Beaney, The Right to Counsel in American Courts 14–22 (1955) James J. Tomkovicz, The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution 9–13 (2002) George C. Thomas III, Colonial Criminal Law and Procedure: The Royal Colony of New Jersey 1749–57, 1 N.Y.U. J. L. & Liberty 671 (2005).
. See, e.g., Tomkovicz, supra note 8, at 2–6 J.M. Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 Law & Hist. Rev. 221 (1991) Alexander H. Shapiro, Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696, 11 Law & Hist. Rev. 215 (1993).
. See John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L. Rev. 263, 309–10 (1978) see also Shapiro, supra note 9.
. A statutory right to counsel was granted in 1836, but counsel began to appear with more regularity in felony cases throughout the eighteenth century. See Beaney, supra note 8, at 8–12 Beattie, supra note 9, at 221–22.
. For reasons that are not altogether clear, counsel was permitted to appear for defendants in misdemeanor cases. See Beaney, supra note 8, at 8.
. An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8 Will. 3, c. 3 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820) see Tomkovicz, supra note 8, at 6–7 Shapiro, supra note 9, at 217–18.
. See Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 476–77 (1996) (noting the spectrum of political figures who had been subject to prosecution for treason) Craig S. Lerner, Legislators as the “American Criminal Class”: Why Congress (Sometimes) Protects the Rights of Defendants, 2004 U. Ill. L. Rev. 599, 632–33 (“After the Restoration of the Crown in 1660. the Whigs charged many of those closest to King Charles II with a papist conspiracy. But the wheel of fortune turned and the opposition Whigs soon found themselves on the receiving end of treason accusations.”) Shapiro, supra note 9, at 219–20.
. Shapiro, supra note 9, at 219–20.
. Faretta v. California, 422 U.S. 806, 821–22 (1975) (describing the Star Chamber as having “symbolized disregard of basic individual rights” and noting that impact on the drafting and ratification of the Sixth Amendment) see also Colin Miller, Impeachable Offenses?: Why Civil Parties in Quasi-criminal Cases Should Be Treated Like Criminal Defendants Under the Felony Impeachment Rule, 36 Pepp. L. Rev. 997, 1004 (2009).
. See Langbein, supra note 10, at 309–11.
. See William Ewald, James Wilson and the Scottish Enlightenment, 12 U. Pa. J. Const. L. 1053, 1078–79 (2010) (documenting the Glorious Revolution and its religious underpinnings). The roots of the Glorious Revolution related to religious conflict, most prominently the fact that King James II was Catholic and proposed offering rights to Catholics, giving rise to fears among Protestants that they soon would be persecuted. Id.
. See Michael Tonry, Determinants of Penal Policies, 36 Crime & Just. 1, 25 (2007) (noting that the aim of the Revolution was to “confirm the power of the political classes by limiting the power of the monarch”).
. See Shapiro, supra note 9, at 222–24.
. Langbein, supra note 10, at 309–11 Shapiro, supra note 9, at 222–24.
. See Shapiro, supra note 9, at 244.
. An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8 Will. 3, c. 3, § 1 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820).
. Langbein, Criminal Trial, supra note 10, at 312 (noting that during the 1730s counsel could cross-examine witnesses and offer observations about the evidence to the jury).
. Treason Act, 1696, 7 & 8 Will. 3, c. 3, § 1 (Eng.). Professor Langbein has explained that this provision required not that counsel be appointed to indigent defendants in treason cases, but rather served only “to legitimate the service of defense lawyers as a professional activity that might otherwise be treated as conspiracy in the alleged treason.” John H. Langbein, The Origins of Adversary Criminal Trial 94 (2003).
. John H. Langbein, The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors, 58 Cambridge L.J. 314, 341 nn.145–47 (1999) (documenting instances of representation in treason cases in the 18 century) Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law and Soc’y Rev. 487, 498–508 (1985) (describing the representation of Hadfield by the Hon. Thomas Erskine).
. See Moran, supra note 29, at 498 (noting that Hadfield, “[a]cknowledging his poverty,” requested that the court appoint the Hon. Thomas Erskine and Mr. Serjeant Best as his counsel, and they did in fact represent him).
. See N. Bailey, An Universal Etymological English Dictionary 217 (1721).
. Moran, supra note 29, at 498.
. See The Routledge Handbook of Forensic Linguistics 192–94 (Malcolm Coulthard & Alison Johnson eds., 2010) Langbein, supra note 29, at 341 & n.147. Sir Bartholomew Shower, another prominent Tory activist, also represented a number of Tories charged with treason. See Philip Hamburger, Beyond Protection, 109 Colum. L. Rev. 1823, 1889 n.214 (2009) (noting that Bartholomew was a “noted Tory lawyer”). As discussed above, the Tories were as much victims of treason prosecutions as the Whigs.
. Of course, because prior to the passage of the Treason Act, counsel could appear in treason cases only with the permission of the court, it is unlikely that many lawyers were experienced in treason cases at the time the Act passed.
. An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8 Will. 3, ch.3, § 1 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820).
. See George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J. 575, 618 (1997) (noting that although there was a “proliferation of treason trials” in the last decade of the Stuarts’ reigns, “[a]ccused traitors had not been the only criminal defendants to lose their lives for want of counsel”).
. Id. (noting that the Treason Act “expose[d] men of high rank and conspicuous position to the calamities which must have been felt by thousands of obscure criminals without attracting even a passing notice”) (quoting 1 James Fitzjames Stephen, A History of the Criminal Law of England 402 (1883)).
. Beattie, supra note 9, at 223–24 Randolph N. Jonakait, The Origins of the Confrontation Clause: An Alternative History, 27 Rutgers L.J. 77, 83–84 (1995) Langbein, supra note 10, at 307.
. In addition, as Professor Langbein has documented, this trend toward permitting counsel in felony cases also corresponded to an increase in prosecutions undertaken by the Crown. See Langbein, supra note 10, at 313 (describing both the relaxation of the rule prohibiting defense counsel and the increase in the number of prosecutions).
. Beattie, supra note 9, at 221 Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case, 90 B.U. L. Rev. 1147, 1165 (2010).
. See Jonakait, supra note 40, at 94 (arguing that “[i]n drafting the Amendment, the Framers were not incorporating English law. Instead, they were constitutionalizing an existing American practice that had emerged before the Bill of Rights”).
. Paine was tried in absentia after he fled to France. Sir Thomas Erskine represented Paine at the trial, and although he mounted a vigorous defense, the jury convicted Paine. See Moran, supra note 29, at 498.
. Article III provides that “[n]o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act.” U.S. Const. art. III, § 3. This mirrors the language in the Treason Act’s requirement that prosecutions be upon “the Oaths and Testimony of two lawfull Witnesses,” An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8, Will. 3, c. 3, § II (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820).
. Beaney, supra note 8, at 14–22 (tracing the colonial history of the right to counsel and concluding that in the post-Revolutionary period, most states provided a right to counsel) Jonakait, supra note 40, at 95.
. See Jonakait, supra note 40, at 109 (“The Sixth Amendment, in granting a full right to counsel in all cases, was not constitutionalizing English law. It was rejecting, or at least going beyond, the existing common law.”).
. See generally Fisher, supra note 38.
. Treason Act, 1696, 7 & 8 Will. 3, c. 3, § 1 (Eng.).
. See U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. ”).
. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right. to have compulsory process for obtaining witnesses in his favor. ”).
. See Fisher, supra note 38, at 616 (noting that six years after the Treason Act, Parliament extended the requirement of sworn defense witnesses to all felony cases).
. Green, supra note 1, at 468.
. Id. at 468–69.
. An Act for Regulateing of Tryals in Cases of Treason and Misprison of Treason, 1696, 7 & 8 Will. 3, c. 3, § 1 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820) (emphasis added).
. See supra Part I.B.
. The Court’s Sixth Amendment right to counsel doctrine has developed almost entirely without any consideration of original meaning. See, e.g., Strickland v. Washington, 466 U.S. 668 (1984) (holding that the Sixth Amendment requires effective assistance of counsel with no discussion of original meaning) Scott v. Illinois, 440 U.S. 367 (1979) (holding that misdemeanor defendants sentenced to fines do not have right to counsel without any mention of original meaning) Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that felony defendants have a right to counsel without examining the original meaning of right to counsel).
. Strickland, 466 U.S. at 686.
. See id. at 687 see also Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L. Rev. 1, 1 (“Courts rarely reverse convictions for ineffective assistance of counsel. ”) Stephen F. Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283, 352–53 (2008) (noting that “successful ineffective assistance claims are infrequent at best” and that “[t]he Strickland approach is a prescription for disaster in capital cases”) Richard L. Gabriel, Comment, The Strickland Standard for Claims of Ineffective Assistance of Counsel: Emasculating the Sixth Amendment in the Guise of Due Process, 134 U. Pa. L. Rev. 1259, 1277–79 (1986) (arguing that it is virtually impossible for defendants to prove that a jury would have reached a different result) Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capital Trials, 107 Harv. L. Rev. 1923, 1935 (1994) (arguing that the prejudice standard should not apply in capital trials because it is so difficult to meet).
. See, e.g., Vivian O. Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths—A Dead End?, 86 Colum. L. Rev. 9, 82 (1986) (arguing that the majority’s reasoning is unpersuasive) Meredith J. Duncan, The (So-Called) Liability of Criminal Defenses Attorneys: A System in Need of Reform, 2002 BYU L. Rev. 1, 18 (arguing that the Strickland standard is too burdensome and that a defendant’s right to effective counsel is virtually without substance) William S. Geimer, A Decade of Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 Wm. & Mary Bill Rts. J. 91, 93, 176 (1995) (arguing that Strickland undermines the effect of Gideon and calling for the decision to be overruled) Richard Klein, The Constitutionalization of Ineffective Assistance of Counsel, 58 Md. L. Rev. 1433, 1446 (1999) (arguing that Strickland interprets the requirement of the right to effective assistance of counsel in “an ultimately meaningless manner”).
. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1837–41 (1994) (discussing the life and death implications of the low standard for effective assistance of counsel in death penalty cases) Gabriel, supra note 61, at 1277 (noting that the prejudice standard “reverses the usual presumption that a defendant is innocent until proven guilty”) Klein, supra note 62, at 1468 (observing that the Strickland standard essentially requires a defendant to prove his innocence) Note, The Eighth Amendment, supra note 61, at 1931 (noting Strickland’s emphasis on preventing hindsight bias and arguing that defendants can rarely establish that they would have been acquitted).
. See United States v. Cronic, 466 U.S. 648, 663–66 (1984).
. See Gabriel, supra note 61, at 1288 (arguing that the decision sacrifices explicit Sixth Amendment rights for a judicially-created concept of fairness) John C. Jeffries, Jr. & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U. Chi. L. Rev. 679, 684 n.25 (1990) (noting that the Strickland standard is linked “with due process notions of fundamental fairness”).
. An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 1696, 7 & 8 Will. 3, c. 3 (Eng.), in 7 Statutes of the Realm 6 (John Raithby ed., 1820).
. See Criminal Justice Act, 18 U.S.C. § 3006(A) (2012) (setting requirements for adequate representation of defendants).
. See supra Part I.B.
. There conceivably could be a narrow category of criminal cases for which a bankruptcy attorney might be qualified. For instance, if the charges against the defendant alleged bankruptcy fraud, a bankruptcy attorney might well be qualified to represent the defendant. That category of cases, though, would not include most of the criminal docket.
. See United States v. Cronic, 466 U.S. 648, 665 (1984).
. See Douglas A. Berman, From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing, 87 Iowa L. Rev. 435, 444–46 (2002) (noting that both “the sheer amount of law” and the substance of the law “heighten the challenges for defense counsel and may exacerbate the impact of differences in the quality of defense counsel”).
. See Strickland v. Washington, 466 U.S. 668, 669 (1984) (holding that defendant must establish a reasonable probability of a different outcome absent counsel’s errors). The challenges of establishing ineffective assistance are magnified if the trial lawyer represents the defendant on direct appeal, as often happens. Under those circumstances, counsel likely will not raise ineffectiveness, and the defendant then has to raise the issue on post-conviction review, when he is not entitled to representation by counsel. As many have pointed out, developing the record that counsel’s errors were prejudicial without the assistance of counsel can be prohibitively difficult. See, e.g., Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679, 680–81 (2007).
. See Strickland, 466 U.S. at 669–70.
. I recognize that experience is not necessarily an adequate substitute for skill. In other words, there are many experienced but inept lawyers. The performance of those lawyers should be examined to assure that defendants receive a fair trial under the Strickland standard.
. See Cronic, 466 U.S. at 665 (“Every experienced criminal defense attorney once tried his first criminal case.”).
. Some courts require lawyers to have either conducted a trial or second-chaired a trial before appearing as sole or lead counsel in a trial. See, e.g., D.D.C. Cr. R. 44.1(b), available at http://
www.dcd.uscourts.gov/dcd/sites/www.dcd.uscourts.gov.dcd/files/2010_MARCH_LOCAL_RULES_REVISED_July2011_July2013.pdf. Many states also have a similar rule for attorneys representing capital defendants.
. As discussed above, if the criminal charges relate to an area within the lawyer’s expertise, that lawyer might be qualified even if she had not previously represented a criminal defendant.
United States Virgin Islands and the 19th Amendment
The United States Virgin Islands in gray – indicating they were not one of the original 36 states to ratify the 19th Amendment. CC0
Women first organized and collectively fought for suffrage at the national level in July of 1848. Suffragists such as Elizabeth Cady Stanton and Lucretia Mott convened a meeting of over 300 people in Seneca Falls, New York. In the following decades, women marched, protested, lobbied, and even went to jail. By the 1870s, women pressured Congress to vote on an amendment that would recognize their suffrage rights. This amendment was sometimes known as the Susan B. Anthony amendment and became the 19th Amendment.
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex."
After decades of arguments for and against women's suffrage, Congress finally approved the 19th Amendment in 1919. After Congress passed the 19th Amendment, at least 36 states needed to vote in favor of it for it to become law. This process is called ratification.By August of 1920, 36 states ratified the 19th Amendment, ensuring that in every state, the right of citizens to vote could not be denied based on sex..
Flag of the United States Virgin Islands. CC0
The 19th Amendment impacted women differently based on where they lived. The US Virgin Islands are composed of three main islands (Saint Croix, Saint John, and Saint Thomas) as well as several smaller islands. They are not a state, but became United States Territory in 1917. Therefore, they could not vote to ratify the 19th Amendment. Since 1927, people born in the US Virgin Islands are United States citizens. Residents are ineligible to vote for US President and are represented by a non-voting delegate in Congress. The Organic Act of 1936, which established the Executive, Legislative and Judicial branches of the US Virgin Islands government, prohibited "any discrimination in qualification [for voting rights] be made or based upon difference in race, color, sex, or religious belief."
The U.S. Bill of Rights
The Preamble to The Bill of Rights
Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use, without just compensation.
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.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Note: The capitalization and punctuation in this version is from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.