An Originalist Argument for a Sixth Amendment Right to Competent Counsel

• Author: Erica Hashimoto
• Position: Associate Professor of Law, University of Georgia School of Law
• Pages: 1999-2013

1999

An Originalist Argument for a Sixth

Amendment Right to Competent Counsel

Erica J. Hashimoto

ABSTRACT: The Treason Act of 1696 provided a right to counsel in

treason cases in England and laid the framework for the right to counsel

both in England and in the United States. Evidence suggests that the

Treason Act may have influenced the Framers of the Constitution; thus, any

historical understanding of the Sixth Amendment right to counsel should

consider the quality of representation treason defendant s received. If, as

appears to be the case, treason defendants had competent, experienced

lawyers representing them, then the Sixth Amendment right to counsel may

well include the right to such representation. This Essay suggests that the

Court’s current ineffective assistance of counsel doctrine does not adequately

reflect this historical understanding of the Sixth Amendment right to

counsel.

I

NTRODUCTION .................................................................................... 2000

I. THE ENGLISH HISTORY OF COUNSEL IN CRIMINAL CASES ................... 2001

A. THE HISTORICAL CONTEXT OF THE TREASON ACT OF 1696 ............. 2002

B. EFFECT OF THE TREASON ACT ......................................................... 2005

II. THE INCONSISTENCY BETWEEN THE HISTORICAL UNDERSTANDING

AND CURRENT DOCTRINE .................................................................... 2009

III. AN ORIGINALIST SIXTH AMENDMENT STANDARD ................................ 2012

C

ONCLUSION ....................................................................................... 2013

 Associate Professor of Law, University of Georgia School of Law.