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« 3 QD Prize in Politics | Main | The wonder peptide hormone (Joe) »

November 24, 2009

Comments

It seems to me that whether or not you pay for your attorney, you'll pay for your attorney. Thus, it doesn't matter what the Sixth Amendment meant, means, or will mean, then, now, or tomorrow.

Let me make two predictions, one safe, the other less so. First, these "thought experiments" (or something) over originalism are not long for this world. Such tedious sophistry, such mind-numbing navel gazing and nose picking! The Orin Kerrs and Jack Balkins of the world are free to ponder all the puzzles they can devise, but fewer and fewer of us are going to attend to them. That's the safe prediction, for it's pretty clear that fewer and fewer readers really care about the vicissitudes of this particular big O, the law as it was when it was handed down, the utterance from the omphalos radiating through time and space. We have lives, you know.

The second prediction is only tangentially related, but I want to get it off my chest. Pragmatism, too, shall wane. Take Joe's argument: "there's absolutely no way that, under our current legal system, a felony defendant can get a procedurally fair trial if he doesn't have an attorney." Well, in fact, there is some way it could be so. Some pro se defendants are very wily. I know. I receive letters from prison inmates seeking legal research assistance all the time. Some are confused. Many are straightforward, precise, and reasonable requests.

It might appear that Joe's argument stems from a pragmatic foundation, a real world, open-eyed acceptance that the system won't work without professional guidance, a fact we simply have to confront and prepare to accommodate. But I think, to the contrary, that Joe is coming from a potent sort of idealism, which I embrace. Who cares whether some defendants will be able to navigate the system successfully? Even so, everybody ought to have access to competent representation when the need arises. Who cares what the Constitution may or may not intend? Everybody ought to have access. This sort of stubborn idealism will eventually oust the spineless pragmatism emanating these days preeminently out of our courts, our legislature, and our White House (another big O). I urge us all to speed its demise, to nurture and embrace our inner wingnut.

Some pro se defendants are very wily. I know. I receive letters from prison inmates seeking legal research assistance all the time. Some are confused. Many are straightforward, precise, and reasonable requests.

Could we have a post on this? Not right now. Well after the Thanksgiving turkey and pie have been eaten and digested will be a good time. No names need be named. But a few illuminating examples of the type of material that prison inmates are requesting will make for a very interesting article. Think about it over the festive dinner tomorrow, Dean.


I had a feeling I might get a tap on the shoulder after I wrote those remarks. I imagine I can craft something. Certainly, names must be left out. But I'd also have to avoid exploiting the desperation evident in many of these inmates' requests.

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