An Originalist Argument for a Sixth Amendment Right to Competent Counsel

INTRODUCTIONMore than twenty years ago, Professor Bruce Green argued that an original understanding of the word "counsel" for purposes of the Sixth Amendment (at least in capital cases) should include only those lawyers qualified to serve as defense counsel.1 Since that time, the Court not only has accepted original arguments regarding the meaning of certain Sixth Amendment phrases, but also has significantly reformulated Sixth Amendment doctrine as a result.2 The Court's recent willingness to entertain arguments regarding the original meaning of the Sixth Amendment's text provides a timely opportunity to revisit Professor Green's definition of counsel and to explore the effect that definition would have on the standard for ineffective assistance of counsel set forth in Strickland v. Washington.3In the past decade, the Court has repeatedly emphasized the importance of original meaning in determining (or redefining) the parameters of the Sixth Amendment rights to confront witnesses and to be tried before a jury.4 This shift to originalist analysis has required that the Court completely change the doctrine in each of these Sixth Amendment areas.5 Symmetry of logic suggests that the Court may bring a similar originalist perspective to the Sixth Amendment's "assistance of counsel" guaranty.6As it turns out, however, the existing historical account of the English right to counsel is incomplete. This Essay offers a new account, arguing that any assessment of the original meaning of the right to counsel must focus on the Treason Act of 1696. Consideration of that Act suggests that the Sixth Amendment right to the "assistance of counsel" may well be more robust than the Court has previously recognized. In particular, although the Court perhaps should maintain a Strickland-like framework for Due Process claims, the Sixth Amendment right to counsel should encompass the right to be represented by experienced defense counsel.7I. THE ENGLISH HISTORY OF COUNSEL IN CRIMINAL CASESWhere should one look to unearth the original meaning of our Constitution's safeguard of the right to counsel? The colonial practice has received some scholarly attention,8 as have some aspects of English law in the period leading up to the ratification of the Sixth Amendment.9 But English practice under the Treason Act of 1696 has received almost no consideration by scholars addressing the Sixth Amendment right to counsel. This omission is significant because that Act was the one and only statute that guaranteed a right to counsel in England prior to the adoption of the Bill of Rights.10 To be sure, scholars have composed detailed histories of Parliament's passage of the Treason Act of 1696 and the impact that Act had on English criminal procedure in non-treason felony cases. None of this scholarship, however, has focused on how the Treason Act may have informed the thinking of late eighteenth-century Americans about the meaning of the right to counsel. This Part will summarize the history of the Treason Act of 1696 and the impact the Act had on criminal procedure in non-treason felony cases in England.A. THE HISTORICAL CONTEXT OF THE TREASON ACT OF 1696Prior to the eighteenth century, English law prohibited counsel from appearing in any felony criminal cases (unless the court, in its discretion, permitted counsel to appear), and until the middle of the eighteenth century, judges regularly denied felony defendants the opportunity to be represented by counsel.11 In other words, felony defendants had to represent themselves.12 The first exception to this prohibition on counsel in felony cases came when Parliament passed the Treason Act of 1696.13Understanding the significance of the Act requires an understanding of the historical context in which it was adopted. In seventeenth century England, both prominent political parties of the day-the Whigs and Tories-used treason prosecutions as a political tool against each other. …