Crisis at the Courthouse?
Monday, July 14th, 2008 By James Nesbitt
The Cincinnati Enquirer reported this weekend on a crisis in the Hamilton County Public Defender’s office.
It seems clear from this article that Hamilton County is not meeting the demands placed on the public defender system, but what is not clear to many is why this system exists in the first place.
The Constitution, as it was originally understood, places limitations on government action. It does not, however, require action of the government. This is consistent with the founders’ view of individual rights, the exercise of which do not require action on the part of others. For instance, Congress may not abridge the freedom of speech. This grants individuals the right to speak, but it does not require the government to provide them with the means to do so (for instance, a radio program). The Supreme Court recently affirmed the individual right to own weapons, but it did not find an obligation of the government to supply each citizen a handgun. Late Chief Justice William H. Rehnquist accurately described this interpretation of constitutional rights in his 1989 opinion of DeShaney v. Winnebago County:
…nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text…Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”
While Rehnquist was addressing a Due Process challenge, his opinion is still useful in this study due to the Constitution’s amazingly beautiful habit of consistency. The founders used the same principles in writing the Due Process Clause that they used in writing its neighboring clauses—for instance, the clause in the following amendment granting a defendant the right “to have the Assistance of Counsel for his defence.” However, this interpretation of the Due Process Clause (and constitutional rights in general) has not been applied to this clause. In 1932, the Supreme Court ruled in Alabama v. Powell that the government must provide counsel to indigent defendants in capital cases. In the 1963 case of Gideon v. Wainwright, the Supreme Court expanded that interpretation by definitively and unanimously declaring a defendant’s right to counsel equates an obligation of the states to provide that counsel. This goes beyond an interpretation which would be consistent with other constitutional guarantees, as the requirement for action is not limited to the individual who is exercising the right.
In response to these rulings, states had to develop public defender systems to respond to the high demand for free counsel. The Enquirer story notes the heavy tax-payer burden and liability of this system. When questioning Hamilton County’s public defender’s office, we should also be asking ourselves why it is considered a constitutional right to have others pay for defendants’ legal counsel, an interpretation which is inconsistent with the principles used to write the Constitution in the first place.
Tags: Health care, individual rights, public defender, Supreme Court
