New York University Public Law and Legal Theory Working Papers

The People’s Right: Reimagining the Right to Counsel

Martin Guggenheim, New York University


This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. Building on the writings of Anthony Amsterdam and Akhil Amar, this Article argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Founders of the Constitution, above all else, contemplated a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. In the world inhabited by the Founders, the primary means by which executive power was to be checked was through the jury system.

In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. In the overwhelming majority of cases prosecuted in state court, defendants are not provided with an attorney who has the capacity to undertake any kind of meaningful investigation into the facts and circumstances of their cases.

Courts need to rely on a vital ally when performing their oversight responsibilities. They depend (we depend) on a robust indigent defense system which routinely investigates the underlying facts and circumstances of individual cases as the only truly meaningful check on executive power.

In our adversary justice system, judges are constrained from performing more than a very modest investigation into cases. Instead, if investigations are to take place, they will be done by defense counsel or no one outside of the executive branch. Challenges to inadequate indigent defense systems have invariably been brought as Sixth Amendment claims. For the most part, these challenges have failed. Challenges brought on separation of powers claims, however, would have to be considered in entirely new terms. Simply stated, it would assert that those responsible for the failure to provide sufficient funds for an adequate defender system (usually the legislative but sometimes the executive branch as well) have improperly intruded into core judicial branch responsibilities, denying courts the opportunity to perform their essential functions. This shift from an individual’s to society’s loss would change the focus of the inquiry in dramatic ways and would provide courts with the legitimacy to do something that, paradoxically, they are currently denied because of an opposite understanding of the court’s proper place in our system of separation of powers. Specifically, current wisdom has it that courts act beyond their proper authority when they order legislatures to spend more money than they are willing on indigent defense. Because choices concerning the expenditure of public money are properly allocated to the legislative branch, the reasoning goes, such judicial orders would constitute an improper intrusion by the courts into the legislature’s prerogatives.

This Article advances the obverse claim. Separation of powers, which has long been a shield preventing courts from overseeing indigent defense systems, is now a sword by which courts are authorized to decide for themselves whether indigent defense systems are adequate to allow courts to do their duty. If courts find they are not, they would be constitutionally empowered to fix the problem by insisting that more money is made available for indigent defense.

An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general enforcing the rights of his or her client, the collective defense system should be seen as the investigative arm of the judiciary providing meaningful oversight on executive power. Without a robust indigent defense system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis.