02 June 2005

Is the 6th Amendment a Negative Right?

Mr DA comments on this post (about court appointed counsel) that:
Consider the 2nd Amendment. What good is the right to keep and bear arms if I can't afford a gun?

Consider the 8th Amendment. What good is a right against excessive bail when I have no assets and ANY bail is excessive?

My point is that the rights we take for granted are essentially negative rights as against the government. "Congress shall make no law. . . " ". . . the right of the People. . . shall not be infringed." "The right of the People . . .shall not be violated. . ." "No State shall make or enforce any law. . ." "The right of Citizens . . .to vote shall not be denied or abridged. . ." and so on and so on.

And the only duty the 1st Amendment places on government is not to unreasonably regulate public speech or assembly. It's still a negative duty.
And Tom McKenna adds:
Good point, Mr. DA... esp. reference the 2d amendment. The purpose of that amendment being the maintenance of a well regulated militia, that "right" to keep and bear arms really ought to be subsidized by the government. After all, as Ken so eloquently states, there is no right if you can't afford to exercise it. And just as a trial is "sponsored" by the government, imposing a burden on it to subsidize the right to counsel, so also the arming of a well regulated militia is an undeniable government function.
First, let me correct a misapprehension of Tom's. I did not state that "there is no right if you can't afford to exercise it." I said that a right, without a remedy for the denial or trampling of that right, is not really a right.

I find myself mostly in agreement with Mr. DA's point. Most of the rights in the Constitution are negative rights; they proscribe actions by the government. The 1st Amendment states "shall make no law"; the 2d states "shall not be infringed"; 3d - "No Soldier shall"; 4th - "shall not be violated"; 5th - "No person shall be held - nor shall any person be subject - nor shall be compelled"; and the 7th -"shall not be required." These are all limitations as to what the government can do.

However, the 6th Amendment is different. It sets out a positive rights for the citizen; the rights in it are prescribed: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."

Of course, the Amendment does not state who the prescription is meant to command into action. However, looking at the rest of the Amendment can shed light on this. The government provides the speedy and public trial. The government provides the jury. The government informs the citizen of the nature and cause of the accusation. The government must confront the citizen with witnesses. The government provides the compulsory witness process. I doubt anyone would argue these are not things the government is required to provide. Why would the last sub-section of this Amendment be different? Applying noscitur a sociis would require that the last sub-phrase be subject to the same requirements as the others.

Again, I realize this was probably not what the founders meant to write into the Constitution. I also realize that reading it as it is written is a wider interpretation than given to it by the courts. By plain reading and obvious interpretation the government should provide an attorney for every citizen who wants one - not just the indigent. Of course, that's not going to happen any time soon.

BTW: If anybody out there reading this is a serious ConLaw scholar, drop me a line and let me know if my reasoning is anywhere near the Supreme Court's actual reasoning. I'm curious, but I don't have the time to research.


Bryan said...

I thought the right to counsel was based on due process rather than the 6th amendment. The holding was the forcing an indigent person to stand trial without a lawyer was fundamentally unfair.

Anonymous said...

One could also make an Equal Protection argument, but if you go down that road, pretty soon you'll have a commerce clause argument, and highway funds will get involved.

More seriously, Due Process, I think, did inform much of the current standard. If not directly. Even strict constructionalists recognize a degree of "bleed" between statutes; given a vague passage at point (a), looking for guidance in slot (b) can be reasonable.