Sixth.com

As core element of the Sixth Amendment is its guarantee of legal representation to citizens, while the Constitution simultaneously provides the right to pro se (“for onself”) defense. Navigation these dual rights has been a complex and long-running struggle for the Courts over recent decades.

The landmark case involving self-representation is Faretta v. California which ruled that defendants have a Constitutional right to refuse external counsel. In the 1975 case, the Court sided with California citizen Anthony Faretta, who was convicted of grant theft after the State Court denied him pro se representation and, instead, appointed a public defender to his case. The 6-3 ruling, written by Justice Potter Stewart, found that a defendant has a right to self representation, although application of this right subsequently denies any arguments against “ineffective assistance or counsel.”

Recent developments have improved the resources available to defendants who wish to represent themselves, including an extensive set of provisions provided by the State Courts in California in the wake of the Faretta decision. The right has its limits, however, as determined by Court rulings, as individuals cannot represent business entities (even if they are the owner) or estates, both of which require licensed legal representation.

A number of prominent pro se defendants have won affirmative rulings at the Supreme Court level including Edward Lawson, who successfully argued that a lack of identification is not sufficient grounds for arrest. Another prominent case involved a suspended attorney, Thomas Van Orden, who challenged the state of Texas (and then Govenor Perry) regarding the religious display at the Austin, Texas capital all the way to the Supreme Court, as a single defendant. A number of prominent studies have shown that pro se defendants, professional and otherwise, have performed reasonable well in the eyes of the court. Self representation is, and remains, a core part of American jurisprudence.

In recent years, a number of high profile cases related to Sixth Amendment rights have come before the Supreme Court. As the Court comes to define a more refined set of rights to representation, a number of pending Appeals-level cases are likely to further challenge existing precedents with respect to procedural rights. Two of the most prominent recent cases have led to an expansion of defendant rights in the eyes of the Court:

Riggins V. Nevada
This 1992 Supreme Court Case affirmed that no person can be forced to take medication as a precondition for remaining “competent” over the course of a trial. The case emerged when David Riggins was forced to ingest anti-psychotic medication by the State of Nevada, which he ruled had nullified his insanity defense, and, thus, denied him due process. After the State Supreme Court re-affirmed the lower court’s decision and conviction, the case went to the Supreme Court.

In a decision led by Chief Justice Rehnquist, the Court ruled that the State had violation Riggins’ Sixth and 14th Amendment rights to due process on a 7-2 basis (Justices Scalia and Thomas dissented from the ruling.) As a result of the ruling, States must evaluate the medical basis for prescribing medications, and must evaluate the potential treatments in light of the defendants health (not using the trial as the determining factor over medical rationale.)

United States v. Gonzalez-Lopez
A recent 2006 ruling held that a defendant who is denied legal representation is is entitled to freedom according to the Sixth Amendment. The court ruled 5-4 in defense of Missouri resident Cuauhtemoc Gonalzez-Lopez, who lost an Appeals Court case after the judge removed his preferred counsel for a “lack of professional conduct”.

The majority ruling, writing by Justice Scalia, argued that the court denied counsel as a “structural error, requiring reversal”. Four Justices dissented from the ruling, including Justice Alito, joined by Justices Roberts, Kennedy and Thomas, who argued that the 6th Amendment provides the right to “effective” counsel, not necessarily preferred counsel and that the lower court ruling should not be automatically overturned.

In the early 20th century, a number of civil institutions emerged to help protect the rights of dissenters and minorities in the wake of the First World War. One of the leading groups, the National Civil Liberties Bureau came out in opposition to the Sedition Acts of 1918, and evolved into the ACLU (American Civil Liberties Union) to cover a broader array of causes.

The group’s founders include Hellen Keller, future Justice Felix Frankfurter and leading civil rights attorney Walter Nelles. Among the group’s earliest civil defenses cases, the ACLU defended a number of accused leftists politicians who were indicted in the Palmer Raids led by the former Attorney General Alexander Palmer. As a result, the ACLU became identified with the organized labor movement, although it explicitly maintained its independence over the coming decades.

Today, the group has developed a prominent stature in the eyes of the Supreme Court, leading a number of civil defense cases to advocate for various causes, including the separation of church and state, ending capital punishment, as well as arguing for reproductive, immigrant and minority rights. The group’s positions have placed them on a variety of sides in recent years, including their defense of Oliver North (on 5th Amendment grounds), as well as their vocal defense of the rights of the accused under the 6th Amendment. Famously the group headed up the defense of John Scopes, as member Clarence Darrow, argued the case against William Jennings Bryan in the Tennessee Supreme Court. More recently, the ACLU has filed a number of lawsuits against the NSA (National Security Administration) against its warrant-less wiretapping program. The group is involved in a wide variety of current legislative procedures, including a number of challenges to domestic surveillance policies as well as on-going litigation challenging Proposition 8 in California.

The Due Process Clause is a legal principle that has its origins in the Natural Law philosophy which preceded American Independence. Stemming from the Founders’ desire to enshrine protections against tyranny into the Constitution, the due process clause can be traced to the Magna Carta, which stated “no free man shall by…imprisoned…except by the lawful judgment of his peers…” The principle of equality before the law has evolved since Alexander Hamilton argued vociferously for its inclusion at the Constitutional Convention, and remains a pillar of legal rights today.

Referenced in a variety of Amendments, from the Fifth Amendment’s right of due process in cases of Federal government prosecution (extended to State Governments in the 14th Amendment) to the entire set of Constitutional rights as declared in the document itself. In fact, early Supreme Court cases, dating back to the 19th century, to the modern theory of unenumerated rights “as a restraints on the legislative, as well as on the executive and judicial powers of the government…”

The history of the Court shows an evolution of the interpretation of due process, which today has been focused on procedural rights, civil liberties and protection of minorities, a narrowing of the more expansive “freedom of contract” rulings under the early 20th century court in the wake of Lochner V. New York . Rather, the modern “substantive” due process precedent which remains a point of contention in current cases related to the implicit “Right to Privacy” as established in Griswold V. Connecticut. Modern Jurists such as Justice Thomas have argued against the subjective nature of the clause, and, instead, focus on the role of precedent, rather than through the lens of moral interpretation.

One of the pillars of the American Justice system is the right to legal representation, as enshrined in the Bill of Rights. As the modern legal system has matured, this basic right to counsel has been extended to lower level (state, local, district) as well as Federal courts, after several fundamental challenges.

As Civil Rights and Liberties became a growing part of American jurisprudence in the early 20th century, a 1932 Powell v. Alabama case extended the rights to a publicly-appointed attorney for those “unable to employ counsel”, which was extended to the lower courts in the 1942 Betts v. Brady case “under special circumstances”. Later rulings, such as the 1963 Gideon v. Wainwright case made the right more universal, providing representation to all accused felons, while the 1979 Scott versus Illinois case granted the right to all accused.

Among the most prominent cases related to the right to counsel, the Court found in Brewer versus Williams that both the 6th and 14th Amendments support the right to legal representation. The ruling emerged from the question as to whether a defendant can defer to a counsel after legal proceedings have commenced. According to the 1977 ruling, this right begins as soon as a defendant is arraigned and “confined” by law enforcement. The related case of Miranda Rights, which requires notification of a legal rights for the accused, also falls within the bounds of the Amendment.

Under the ruling, the Court determined that the accused has the right to counsel as soon as criminal proceedings have begun, a ruling that has held up on appeal in several State Supreme courts, such as the Louisiana v. Hattaway case in 1993 as well as the New Jersey Pasqua v. Council case in 2006.

A landmark Supreme Court case, Miranda v. Arizona ruled that statements made by the accused under interrogation were only admissible as evidence when preceded with a right to consult an attorney. The 1966 decision followed the 1964 Escobedo v. Illinois ruling which limited law enforcement interrogation tactics, and established modern “Miranda Rights”.

The defendant, Ernesto Miranda confessed to kidnapping during an interrogation, but appealed the conviction, claiming his did not have sufficient legal representation during the process. Elevated from the Arizona State Supreme Court, the 5-4 decision came from then Chief Justice Earl Warren who overturned the conviction on the basis of both the 6th Amendment right to representation as well as 5th Amendment rights stating “(the accused) must prior to interrogation, be clearly informed…(of his rights.)” This ruling formed the modern “right to remain silent” as well as the core Miranda Rights.

Recent developments have challenged the Court’s ruling, including many exemptions to the rule in cases of public safety and unprompted confessions. In the 2000 case, Dickerson versus the United States, the Court ruled 7-2 (with Chief Justice Rehnquist delivering the opinion) that Miranda Warnings were Constitutional and “part of our national culture.” the 2004 Missouri versus Seibert case re-affirmed the ruling, establishing guidelines that required law enforcement to honor Miranda rights against coercion by law enforcement.

Leading Claremont Professor Leonard Levy published Origins of the Bill of Rights as part of the Yale University legal book series. A traditional history, which focuses on the Anglo-Saxon tradition in Western law, Levy traces the philosophical roots of our modern constitution to concepts of Enlightenment philosophy. While the book does a solid job of tracing early Constitutional history, it pays less attention to the modern evolution of legal concepts.

As Levy’s 36th book on the Constitution, however, Origins is a comprehensive take on the topic, spanning just 320 pages and covering a wide range of 18th century legal history. For those looking to understand the basic concepts that went into the creation of the Bill of Rights, Levy’s book is a solid source to start with. One criticism of the book, however, is that Levy tends to focus on the originalist conception of the American Constitution, while not heeding other schools of thought which have contributed to the modern Court. Today’s Supreme Court has a wide range of legal philosophies represented, ranging from Originalists such as Antonin Scalia and Clarence Thomas to pragmatists such as Justices Kennedy and Breyer; Chief Justice Roberts strikes a balance between the two sides, and will be the key figure on the Court for decades to come.

Accessible to casual observers and scholars alike, the book is somewhat controversial in its approach to the Second Amendment; Levy argues that the founders sought to provide an individual right to bear arms, which is a point of contention today for legal schools (many argue, by contrast, that the Amendment refers to the right of an independent militia to protect against a tyrannical government.) An additional point of contention is his take on the 9th Amendment where Levy argues that “the natural rights philosophy seized the minds of the Framers, as it had the minds of the rebellious patriots of 1776″, which opens an expansive interpretation of natural rights, playing him back on the left, where his 2nd Amendment arguments fell to the right of center. The 6th Amendment, in guaranteeing the accused of a trial by their peers as well as the right to a legal defense, is a core part of establishing the equality before the law that makes the Constitution a fundamentally Enlightenment-based document. Levy does an excellent job of tracing the roots of this tradition.