The Right to Counsel in American Courts

By William M. Beaney | Go to book overview

CHAPTER III
RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT

DEVELOPMENT OF THE LAW, 1789 To 1938

THE data available indicate that no comment or controversy accompanied Congressional proposal of the Sixth Amendment to the Constitution, and the proceedings at the three state ratifying conventions in which counsel provisions were demanded reveal nothing concerning the contemporary meaning of the right to counsel. The lack of comment could be attributed to the general feeling in this formative period that the important processes of criminal law in the future would be those of the states.1Thus rival counsel in the leading cases involving the Sixth Amendment have freely speculated about its correct historical interpretation, advocating whatever position coincided with their clients' interests.2

The Supreme Court has seemingly avoided the problem of historical analysis in dealing with the counsel provision of the Sixth Amendment, in contrast to its extensive historical discussion when the Fourteenth Amendment due-process requirement of counsel was at issue. This appears strikingly when one compares Johnson v. Zerbst,3 dealing with the Sixth Amendment right, with the Fourteenth Amendment cases of Powell v. Alabama4 and Betts v. Brady.5

____________________
1
See Homer Cummings and Carl McFarland, Federal Justice ( New York: Macmillan, 1937), pp. 464-475.
2
For an outstanding example of such historical "reconstruction," see Brief for Petitioner , pp. 20-28, Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L. Ed. 830 ( 1941).
3
304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 ( 1938).
4
287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 ( 1932).
5
316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 ( 1942).

-27-

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