Posted by
Andrews on Monday, April 07, 2008 10:04:19 AM
I disagree with something
Neal Boortz said in his column today. In his perfectly correct attack on socialized medicine, Boortz listed the rights found in the constitution and came up with this list:
Freedom of religion
Freedom of speech
The right to peaceably assemble.
The right to petition the government
The right to keep and bear arms
The right to be free of unreasonable searches and seizures
Protection from double jeopardy
Due process
A speedy and public trial by jury
The right to legal counsel when charged with a crime
It is a fine list, absolutely correct, until that final item. Or, rather, I disagree with the way the right is interpreted and the way Boortz interprets it.
The constitution does grant a "right to counsel", which means that a citizen has the right to retain an attorney to advise them during legal proceedings. But it is obvious Boortz is thinking in terms of the modern "right to counsel", which includes the state paying for this counsel in the case of the indigent, as he says all are "negative rights" except the right to counsel.
I would argue that the right to counsel is also a negative right, or was conceived as such, as the framers intended only that the state could not prevent you from hiring an attorney, or receiving the services of one acting pro bono, which is a negative right. For almost a century, that was how the right was read by courts, and legal aid was provided voluntarily by pro bono lawyers, not a state or federally funded agency. Gradually, over time, it evolved into the modern right to a state funded attorney, but that was not the original intent.
So, in reality, Boortz is actually reading more into the constitution than was intended, which is ironic as he has opposed the expansion of the constitution in other contexts. But, historically, the right to an attorney was a negative right, and the indigent were covered by pro bono attorneys, not by state funded assistance. So, to argue that the "right to counsel" as written in the constitution is not a negative right is just incorrect.
I am not saying anything about the modern interpretation*, whether it is good or bad, all I am saying is that Boortz is confusing constitutional rights with the later rights attributed to the constitution. Unless he is willing to say the right to abortion is a constitutional right or that the constitution grants states the right to seize land to turn over to developers, then the right for state paid representation at trial is not really a constitutional right.
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* I do have some concerns with state funded counsel, but have not thought the issue through to the point where I have drawn a conclusion. On the other hand, I do think it is time to do away with the Miranda warning. At this time, does ANYONE not know they have a right to remain silent or to counsel? I think we are safe assuming they know this, even should an officer fail to inform them. It seems a meaningless technicality, simply a ritual, at this point. Most criminals can recite it as well as, or better than, the officer can, so what is the point?
Spell check update: It is clear that computer geeks wrote my spell checker. They think that "int" is a word. As my hands work poorly sometimes, my spaces often become misplaced, so "into the" often becomes "int othe". The spell checker finds "othe" incorrect, but thinks "int" is a word. Which is a bit odd, as, outside of programming languages, does "int" have any meaning? (I know very few people are interested in my frequent complaints with my spell checker, but I just can't help myself.)