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As an Anglo-American lecturer in English Criminal and Public (constitutional and administrative) law, I am bemused by the myriad of approaches to US Constitutional interpretation.

So here’s a question: Is Miranda v Arizona “unconstitutional”?  How do you approach the Sixth Amendment right “to have the assistance of counsel”?

The Sixth Amendment states:

“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”.

People tend to fall  broadly into one of three approach camps.

On one hand, you’ve got the “Strict Constructionalists” – and like a good constructionalist, I’ll give you the Black’s Law Dictionary definition: “1. An interpretation that considers only the literal words of the writing. 2. A construction that considers words narrowly, usu[ally], in their historical context”.

On another hand, you have the “Originalists“, who prefer, again according to Black’s:  “The theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it”.

The Strict Constructionalists and the Originalists use the plain meaning of the text, at the time the Constitution was written, as a starting point – and do so by consulting dictionaries published at the time of drafting as well as Blackstone’s Commentaries.

For the Constructionalist, the plan meaning of the word(s) is the beginning and end of the discussion: either the specific action is allowed or it is not – end of.  The Originalist, however,  will go on to consider the intent of the Founders and the context within which the text was written.

Of his own approach, Scalia J is reported to have said:

“The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Finally, you’ve got the people who believe the Constitution is a “living document” which should be read in light of contemporary norms and values.

I always thought my views were in the Scalia J camp – that is, until I read Orin Kerr’s excellent post, “Originalism and the Sixth Amendment Right to have the Assistance of Counsel

Kerr observes:

Here’s my question for readers who take this view: How do you interpret the Sixth Amendment right “to have the Assistance of Counsel” in criminal prosecutions? The right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials. Defense attorneys were banned for fear they would focus the jury on technicalities, not guilt or innocence. The core concept of a criminal trial at common law was that the defendant would be forced to testify without preparation or counsel, and that the jury would be able to distinguish a lying defendant from a truthful one directly without a lawyer getting in the way.

“By the time of the framing, the English practice had been changed and criminal defendants were allowed to bring an attorney if they had hired one. The Sixth Amendment then recognized that right as the right to have the Assistance of Counsel. However, my sense is that this was originally understood to mean the same as the English right: It was a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge (and one who had to do a constitutionally effective job). That’s my sense, at least; I am the first to admit that the history here is sparse. The history is sparse in part because federal law provided by statute that counsel should be appointed in criminal cases, at least capital ones. It is also sparse because no one really wants to go back to the old rule, so no one is invested in looking more closely at the question. But as far I can tell, the idea that the Constitution provides a right to the appointment of counsel that the defendant doesn’t have to pay for arose in the 20th century”.

The name of the man responsible for change in English criminal trial practice Mr Kerr notes above is William Garrow.

Mr Garrow made a name for himself in the Old Bailey in the 1780s. The Founders, many of whom were Middle Temple and other trained lawyers, would have been aware of the changes to English criminal trial practice allowing a defence counsel role – hence the Amendment in 1791. (Note also that the Court didn’t assign Mr Garrow his clients and there was no LSC in place to publicly fund those clients).

So, as Kerr asks, “If you are a pure originalist concerned only with getting it right, and you believe stare decisis has no role at all, how do you interpret the Sixth Amendment right to assistance of counsel? Let me break it into two questions. The first is the most interesting: If you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, and somewhat less interesting for my purposes: do you agree that this is the original public understanding?”

Now I’ll ask:  Where in the Constitution does it say “if you can’t afford an attorney, one will be provided at no cost”? Err, not the Sixth Amendment.

Are you unhappy with “judge-made law”?  Would you throw out Miranda v Arizona, and all the subsequent cases flowing from it,  as “unconstitutional” and go back to the days of William Garrow and the 1791 Amendment?

– or does stare decisis have a role, no matter which interpretive approach you’ve (previously) adopted?

I wonder what Uncle Antonin would have to say…