The Importance of Constitutional Text

I recently had an interesting exchange with a friend of mine about the Sixth Amendment’s guarantee of “assistance of counsel.” As a necessary backdrop, the Sixth Amendment to the United States Constitution reads as follows:

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.

By its text, it is unclear whether the Sixth Amendment is a promise not to interfere with somebody’s right to counsel or a promise to ensure that every defendant in a criminal prosecution is in fact represented.  But in Johnson v. Zerbst, the Supreme Court adopted the latter approach, holding that the federal government cannot convict a defendant who is not represented by counsel unless that defendant waives this constitutional right.  In subsequent decisions, the Supreme Court not only applied this requirement to the states, but also required the states to appoint counsel for those defendants that cannot afford one.

In the face of this, my buddy makes the following interesting point:

The Second Amendment has been acknowledged by the Court as guaranteeing an individual’s right to bear arms.  Surely, however, the Second Amendment does not require that government purchase a handgun for everyone who cannot afford one.  Further, the right to a free press does not mean that government needs to buy a newspaper company for anyone who would like to start one.  That cannot have been the original understanding.  Yet once the Court decides that government is required to pay for the right to counsel, why wouldn’t the Constitution require government to pay for other rights the Constitution guarantees?  Yes, there are very good reasons (and Gideon lists many of them) to provide counsel for the indigent (but not a gun or a newspaper company).  But, an originalist might ask, is this a Constitutional question?  Or might it be a policy question?

Here’s my response:

I think this is a pretty convincing post.  The only issue I have with your reasoning is that the three amendments that you cite (First, Second, Sixth) do not use the same language in protecting their respective rights.  Here’s how I read each right you discuss:

First: “Congress shall make no law . . . abridging the freedom . . . of the press.”
Second: “[T]he right of the people to keep and bear Arms, shall not be infringed.”
Sixth: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

I suppose originalism places more emphasis on the intentions of the Framers rather than on the text.  But, as a textual matter, I think it’s possible to read the sixth amendment as mandating appointment of counsel to those who cannot afford it while not reading the first or second amendments as mandating government subsidized newspaper companies or guns.  The first and second amendments are restrictions on government action – they say what the government can’t do.  The sixth amendment seems to say what the government must do.

To be sure, I still think it’s a strong argument to say that mandating appointment of counsel to the indigent should be a matter for the legislatures since the Constitution’s text is not that clear on the matter.  But, at the same time, it seems that someone who does think it’s a matter of constitutional law can distinguish the nature of such a right from others protected in the Bill of Rights.

I’m really not sure how convincing my response is.  But my point here is to highlight the importance of the precise words that the Constitution uses.  I agree that the Sixth Amendment, by its terms, does not necessarily guarantee appointment of counsel to the indigent.  But using other protected rights to draw parallels is risky if the language doesn’t protect the right in the same way.