Liberty versus tyranny

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Signing the Declaration of IndependenceFor the signers of the Declaration of Independence, “liberty” is the universal notion that every person should determine their own path to happiness free from undue government control.[1] Patrick Henry preferred death to living without it.[2] John Adams risked his reputation by defending in court the British soldiers involved in the Boston Massacre, recounting years later that a defense lawyer ought to be the last thing a person should be without in a free country.[3]

In fact, “liberty” is so central to the idea of American democracy that the framers of our Constitution created a Bill of Rights to protect personal liberty from the tyranny of big government. All people, they argued, should be free to express unpopular opinions or choose one’s own religion or protect one’s home without fear of retaliation from the state.

Preeminent in the Bill of Rights is the idea that no one’s liberty can ever be taken away without the process being fair. A jury made up of everyday citizens, protections against self-incrimination, being informed of the nature of the offense for which one is accused, and the right to a speedy and public trial are all American ideas of justice. And so all of them were enshrined in the first ten amendments to the United States Constitution, which became law when they were ratified by the states in 1791.[4]

Patrick Henry

The right to have a lawyer advocating on one’s behalf is found in the Sixth Amendment.[5] As distinctly English settlements, the laws governing the colonies by and large were based upon the contemporary rules of English common law.[6] In England, however, the law held that a person accused of treason or a serious crime was to be denied the assistance of a lawyer in defending himself against his accusers.  Colonial governments broke with contemporary English common law, and instead wrote into their statutes and charters a right to have the assistance of an attorney in any criminal case.[7]

But, wait . . . Those same colonies became the original thirteen states of the United States of America.  And almost all of them had already established the right to counsel as state law? Well, if that was the case, then why was it important for the federal Congress to ratify this same right as an amendment to the Constitution?

The citizens of this new republic had created a new federal government to administer the union of their respective state governments. But, those citizens were well acquainted with England’s history of government abuse in which people were subjected to unfair methods of prosecution and investigation, and left with no personal protections. Having just liberated the Colonies from what they felt was the tyrannical rule of the British government, the Framers of our Constitution were loath to create a new tyranny in the form of this Union’s central government that could ignore – or worse, could abolish – these protections of personal liberty.

Thomas Jefferson

As Thomas Jefferson wrote in 1787, “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.” We, the people, have just enshrined these rights so you, the federal government, cannot take them away from us. And so, with the passage of the Bill of Rights, the right to counsel was sacrosanct. The federal government was obligated to enforce it for all time.

But as of this point, the Sixth Amendment merely established that an accused person had a constitutional right to have a lawyer assist him in defending himself. It made no mention of the government’s obligation to appoint or pay for the lawyer using tax dollars in the event the defendant couldn’t afford the cost on his own.

So, how did we get from “the government cannot prevent you from being represented by an attorney” to “the government will cover the cost of your defense attorney in any matter where you face potential time in jail”?

Well, it actually required an additional constitutional amendment along with a whole litany of U.S. Supreme Court cases interpreting the Constitution to get to where we are today.

But first, we need to take a step back and clarify one thing, and it’s pretty important. The Bill of Rights were restrictions on federal power, rather than state power. Next, we discuss how the Fourteenth Amendment changed this dynamic and why.


[1] This entry in our series about the right to counsel borrows language from the afterwards drafted by 6AC Executive Director, David Carroll, for Karen Houppert’s book Chasing Gideon: The Elusive Quest for Poor People’s Justice, published March 2013 by New Press, New York, New York.

[2] Henry, Patrick. Speech before the Virginia House of Burgesses at St. John’s Church. March 23, 1775: “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! — I know not what course others may take; but as for me, give me liberty or give me death!”

[3] Adams, John. The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Volume II: Diary, Notes of Debate, and Autobiography.

[4] The Bill of Rights Institute has a wealth of information available for public consumption about the debates and the eventual ratification of the U.S. Bill of Rights.

[5] The Sixth Amendment reads: “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 defense.”

[6] William Beaney, The Right to Counsel in American Courts (U of Mich, 1955), at 8.

[7] Specifically, 12 of the 13 original states had established the right to counsel before the Federal Constitution was adopted.

Prior to 1776, the colonial laws of Delaware, Massachusetts, Rhode Island, Pennsylvania, South Carolina, and Virginia included a right to have the assistance of counsel to some degree. The specifics varied. Some included the right to appointed counsel in all cases, others limited to capital cases (which included felonies at the time), and others to have counsel only to argue points in the law. Connecticut had no statute, but as early as 1750 the judicial practice was to appoint counsel in all cases where the defendant requested it, thus making the colony more progressive in action than most other colonies in policy.

By 1784, the right to counsel was included in the constitutions of the newly established states of Maryland, New Hampshire, New Jersey, and New York. North Carolina’s original constitution omitted language on the right to counsel, but it was establish through a 1777 statute instead. And even the independent republic of Vermont, which would eventually join the Union as the 14th state in 1792, had incorporated the right to counsel into its 1777 constitution.

Only Georgia had no right to counsel as of 1791, the year the Federal Constitution was adopted; but even Georgia adopted it as part of its 1798 state constitution.