"The Embarrassing Sixth Amendment"

The title of this post is the title of this new article authored by Andrea Roth now available via SSRN.  Here is its abstract:

In his 1989 essay “The Embarrassing Second Amendment,” Sanford Levinson suggested that left-leaning scholars avoid studying the Second Amendment because they are embarrassed that its text might mean what gun-rights proponents claim it means — an individual right to bear arms.   Levinson urged such scholars to better engage the text, both to model intellectual integrity and to avoid unnecessarily ceding the terms of a critical constitutional debate.

This Article makes a similar argument with respect to the right to counsel.  The Sixth Amendment guarantees the “the assistance of counsel” in “all criminal prosecutions.”  To be sure, the Supreme Court held in Scott v. Illinois (1979) that the right is not “fundamental” in state cases where a defendant is not sentenced to jail time, citing federalism and budget concerns.  Relying on Scott, courts routinely subject defendants to criminal conviction, fines, pretrial detention, and significant collateral consequences like deportation, all without a lawyer.  Yet Scott appears squarely at odds with the Sixth Amendment’s text.  To retain Scott, the Court would either have to concede that “all criminal prosecutions” should not be enforced as written, or apply the text only in federal court, not state court.  Either concession would be hard for the current Court to make, given its ostensible commitments to textualism and to “single-track incorporation.”

Why, then, have progressives not pushed harder to overturn Scott on text-based grounds?  This Article suggests they may be embarrassed by the argument’s implications, for three reasons.  First, many scholars assume that the Sixth Amendment, under a textualist or originalist lens, does not guarantee a right to appointed counsel for indigent defendants.  It follows that progressives must avoid critiquing Scott on textualist grounds to avoid jeopardizing the right to appointed counsel under Gideon.  Second, progressives might be wary that the Court would embrace “dual-track incorporation,” justifying the dilution of other rights in state court.  Third, progressives appear to increasingly believe that an expanded right to counsel, like other procedural rights, is unimportant or even counter-productive.  This Article rebuts each of these concerns in turn and ultimately argues — as did Professor Levinson in the Second Amendment context — that scholars and litigants should engage the text and follow it where it leads: a right to counsel in all criminal prosecutions.