The Right to Counsel

Rising from some interesting indigent defense questions raised in Mr. District Attorney a discussion began which then transferred to a Public Defender and then to Confutatis Maledictis - here and here; Gideon and Tom have been going back and forth as to whether the 6th and 14th Amendments require States to provide counsel for an indigent defendant. Gideon has been arguing caselaw but Tom is unconvinced because he doesn't see the requirement that the State provide counsel actually written into the constitution.

Here's the Amendment in toto:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Let me first say that I think Tom is right. There is absolutely no requirement that the State provide a lawyer for the defendant. Tom states what is probably the correct "original intent" of this section: "the concern of the 6th Amendment was to depart from the common law by ensuring that counsel would be permitted in all criminal cases." That said, the founders didn't write that into the Constitution. It doesn't say "an accused may have counsel in any criminal prosecution", it sets out a "right" to counsel.

Each American is guaranteed "the right . . . to have the Assistance of Counsel for his defence." There are no qualifiers such as "if he can afford it" (yeah, I know the founders would have said it fancier but I'm a plain spoken sort). So now we're faced with the conundrum - how do we deal with this plain requirement that the defendant has a right to an attorney for his "defence?"

There is no remedy section of the Constitution and the courts have had to fashion those over the years. The court could have tried to force all State Bars to require all members to serve pro bono publico in criminal defense cases; it could have ordered that all who cannot afford a lawyer have their cases dismissed; it could have required the government to provide counsel for indigents. The first two of these are pretty obviously unworkable; the third is a workable and just (always a bonus) solution. Still, it is a court created solution; maybe Tom has a better one?