Ellis Washington and the 6th Amendment


Ellis Washington’s latest Worldnutdaily column is yet another inane and badly reasoned attack on liberal jurisprudence, this time focusing on the 6th Amendment, which details most of the protections for those accused of committing a crime. That amendment says:

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.

But Washington is quite upset that the courts have actually, you know, enforced those amendments and made them meaningful in the real world, and equally upset that they have incorporated the 6th Amendment against the states:

Yet in modern times this storied history of the Bill of Rights has been severely perverted by what I’ve called the enduring, perpetual Progressive Revolution, whereby the greater part of criminal prosecutions in the United States are at the state and local levels. Thus to this end, all of the criminal-defendant rights and protections contained within the Sixth Amendment did not originally extend to most Americans until the early 1960s when the Supreme Court began systematically incorporating the guarantees of the Bill of Rights to the states through the 14th Amendment with the radical Warren Court (1953-68) followed by the Burger Court (1969-85). The vast majority of Supreme Court cases regarding criminal-defendant rights come during these two leftist, activist and largely unconstitutional judicial eras which has contributed greatly to deconstructing America’s Judeo-Christian traditions, Natural Law, culture and society while contributing greatly to America’s existential constitutional crisis.

Possibly the best-known case from this era relating to the Sixth Amendment is Gideon v. Wainwright (1963), which held that all persons accused of a serious crime are entitled to an attorney, even if they cannot afford one, a rule that was soon extended to cover misdemeanors as well, at taxpayers’ expense. Three years later, the Supreme Court combined the right-to-counsel rule established in Gideon with the Fifth Amendment prohibition against self-incrimination to create the principles animating Miranda v. Arizona (1966). Not since the creation of the Bill of Rights by the constitutional framers in 1791 had the Court ever interpreted the Fifth and Sixth Amendments to mean that individuals had rights to criminal due-process guarantees out of ignorance of the law or indigent economic status. Decisions such as Gideon and Miranda by leftist jurists systematically deconstructed and perverted the U.S. Constitution to create multitudes of new defendant “rights” out of whole cloth…

Applying to the so-called “Incorporation Doctrine” whereby liberal activist judges apply many provisions of the Bill of Rights (including the Sixth Amendment) to the States through the 14th Amendment due-process clause is one of the most enduring yet ignored constitutional con jobs in the history of American jurisprudence – a move which for 50 years has literally given untold multitudes of criminals a key to their own jail cells … at taxpayers expense.

Uh, yeah. He thinks the right to a court-appointed attorney was a perversion of hte constitution and created “out of whole cloth.” Seems to me that when the 6th Amendment says that all defendants have the right “to have the Assistance of Counsel for his defence,” that’s pretty clear. To say that this applies only to those who can afford to pay an attorney is to make the text completely meaningless for the overwhelming majority of criminal defendants. Washington, of course, doesn’t care about such people.

That is an appalling position for anyone to take, but doubly so for a black man. I’m generally not fond of calling black conservatives “Uncle Toms” but I think that accusation fits pretty well for Washington and for Clarence Thomas, who told Senators that because of his upbringing in a desperately poor black family, he would have particular empathy for black people accused of crimes. His time on the court, where he has an unblemished record of ignoring and demeaning every meaningful protection for criminal defendants, shows the exact opposite.

Comments

  1. slc1 says

    Shorter Ellis Washington: Better a hundred innocent men be wrongly convicted than one guilty man be acquitted.

  2. doublereed says

    I thought Warren and Burger were both conservative justices? Ooooh by leftist he means “left in comparison to us.”

    Is this really what makes conservatives angry? People getting better due process?

  3. Michael Heath says

    Nearly all the objections conservatives have with the rest of us, when the rest of us have a valid argument, has me observing conservatives relying on defective premises to argue their conclusion/position. That’s a depressing aspect of our culture I wish weren’t true.

    Here, I think a generous reading of Washington’s point has him still standing with a credible argument. That argument being that it’s wrong to read into the 6th Amendment that obedience to 6th requires us to provide counsel to those who can’t afford it. I think this argument still stands because to take Ed’s position, we must transform a negative numerated right, “to have the Assistance of Counsel for his defence.“, to a positive right, the government will pay for counsel if you don’t have the funds to exercise your right to counsel. This is analogous to our previous (negative) right to access healthcare extending now to a positive right given Medicare, Medicaid, and now Obamacare; the government will fund some of your healthcare if you can’t. Where the protection of this new right is yet to universally applied, won’t be nationwide given some states obstructing the implementation of this right, and where Obamacare may not be defect-free in protecting this new positive right.

    I’m not arguing Washington’s perspective is the only surviving perspective if we don’t research this beyond what’s written in the Constitution. I can also read this right as a positive right here as well; that the framers were setting policy here that requires taxpayers to fund the exercise of another’s negative right like our health care financing policies. Instead I’m arguing that Ed’s perspective introduces policy arguments into the mix, extending the debate from one purely of our protected right to exercise certain behavior to one where democratic actions newly create (positive) rights in order to achieve certain policy perspectives. Where that requires an infringement upon another’s rights to protect your right (in this case collecting more taxes).

    I happen to agree with Ed on the policy and would have happily passed this Amendment as is; though I would have preferred it be more clearly written. However, if I’m right that Washington’s argument is valid, we should at least tip our hat that he’s done a rare thing for a conservative. That is, he made a credible argument (if we strip out much of the BS around it as I did here).

    [Disclaimer, while I note that positive rights are created in the U.S. via our democratic process, I in no way conclude our negative rights are created by government or anyone, they are instead ours, i.e., inalienable.]

  4. naturalcynic says

    …a move which for 50 years has literally given untold multitudes of criminals a key to their own jail cells … Yeah, that’s why we have – by far – the highest per capita prison population in the developed world.

  5. says

    @Michael Heath: I’ve been thinking of trolling conservatives by citing Gideon v. Wainwright to argue that if people can’t afford guns, then the government should buy them one. While they allegedly want more guns, I don’t think they like the idea of poor city-dwellers having them.

  6. John Hinkle says

    …a move which for 50 years has literally given untold multitudes of criminals a key to their own jail cells … at taxpayers expense.

    What about the taxpayer expense of incarcerating innocent people?

  7. badgersdaughter says

    I’m going to propose the Badger Libertarian Addendum to Godwin’s Law as follows:

    Any debater who argues that an existing or proposed government measure is or should be invalid because it is funded “at taxpayer expense”, without a valid, specific, articulate argument as to why the measure should not be funded by the taxpayer, automatically loses the debate.

  8. slc1 says

    Re John Hinkle @ #7

    It would not surprise me if Washington adhered to the Dominick Dunne theory of jurisprudence, namely that, even if the defendant is innocent of the crime charged, he was probably guilty of numerous other crimes for which he was either not suspected or for which there was insufficient evidence for a conviction.

  9. slc1 says

    Re Michael Heath @ #4

    I would highly recommend the book, Gideon’s Trumpet by former New York Times reported Anthony Lewis, who passed away a few days ago. Gideon was the defendant in the case which ultimately went to the SCOTUS which ruled that the state had to provide an attorney for a criminal defendant if he/she was unable to afford one. There was also a made for TV movie of the same title, starring Henry Fonda as Gideon and Jose Ferrer as appellant attorney Louis Nizer who took the appeal of Gideon’s conviction to the SCOTUS pro bono. The movie, somewhat uniquely for a made for TV movie, is also highly recommended.

    The two most interesting scenes from a barrister’s point of view is the fumbling attempt of Gideon to cross examine an eye witness in the first trial compared with his defense attorney’s devastating cross examination of the same witness in the second trial. Shades of Barry Scheck and Dennis Fung in the OJ Simpson trial.

    http://www.imdb.com/title/tt0080789/

  10. dingojack says

    This is the guy who makes up shit to put into people’s mouths based on what he thinks ‘they might have said’ or what he thinks ‘they were thinking’ and then calls it a ‘quote’, what more would you expect from such a loser?
    Dingo
    ——–
    PS Oh Micheal sometimes you’re almost as bad as Uncle Ellis.
    a) ‘a defendant will counsel for their defence’…
    b) … but this defendant can’t afford counsel…
    c) … so the state will provide one for the defendant to ensure they are fairly tried

    If a) and b) are true, what other logical solution but c) could be the outcome?

  11. says

    …which has contributed greatly to deconstructing America’s Judeo-Christian traditions, Natural Law, culture and society…

    Who knew that “America’s Judeo-Christian traditions, Natural Law, culture and society” meant “jailing poor itinerants who have to defend themselves in court”?
     
    Granted, Jesus didn’t have a lawyer, but look how that turned out.
     

    …Gideon v. Wainwright (1963), which held that all persons accused of a serious crime are entitled to an attorney, even if they cannot afford one

    If getting a lawyer is a get out of jail free card, how come it’s okay for those who can afford one to have one?

  12. says

    Yet in modern times this storied history of the Bill of Rights has been severely perverted by what I’ve called the enduring, perpetual Progressive Revolution, whereby the greater part of criminal prosecutions in the United States are at the state and local levels.

    Yes, and the Sixth Amendment says, “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, ”

    His first sentence is a pout-rage on the plain language of the amendment.

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