Ranking the Bill of Rights, Number 5: The 6th Amendment


We have made it to the Top Five! I never thought we would see this day.* Nevertheless, we are here.

*This line is almost entirely for rhetorical flourish. I was fairly certain at the start of these rankings that we would reach number five.

The 6th Amendment reads: “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 where in 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.”

The 6th was among the most difficult amendments to rank. I hold three of the clauses in very high esteem: First, the right to a speedy trial is, I think, clearly a good clause. It helps to ensure that the state doesn’t delay trials to their own advantage. Second, the right to be indicted with charges (“the nature and cause of the accusation”) is also a plus. The Supreme Court has interpreted this well, claiming that merely citing the words of the statute under which one is being arrested is not enough: There needs to be a statement of “all the elements necessary to constitute the offense intended to be punished” (United States v. Carll). The confrontation clause, which allows the defense to cross-examine the prosecution’s witness (and question their physical evidence), again limits the power of the state to arbitrarily exercise its power at the expense of the defendant.

Despite these three unambiguously positive clauses, the 6th Amendment does not make it into the final four due to the mixed results of the rest of the clauses. The 6th Amendment—unlike the other amendments—includes two positive rights, rights that require some action from someone else as opposed to negative rights which simply require inaction (e.g. the right to life requires that others do not positively murder you, taking your life). The right to a trial by jury (in a criminal trial) comes with a correlative obligation for others to serve on a jury. Forcing citizens to serve jury duty arguably contradicts the 13th amendment, which bans “involuntary servitude.”

Besides the moral issues with jury duty, the idea that a jury will—on balance—reach a better outcome than a judge or a group of judges is dubious. Juries are intended to be representative of the people (they are “peers”) but the people tend to have biases that may not be consistent with the proper application of the law. The Rodney King and O.J. Simpson trials are two examples of the ill effects of racial prejudice on jury decision. Moreover, people serving on juries often do not want to serve on juries because of their work or other obligations. There is this sort of adverse selection where people who are clever enough to get excused from jury duty can get excused, while the remainder serves on the jury even if they do not want to. Just as I wouldn’t be comfortable with a judge who doesn’t want to be in the court, I’m not so comfortable with reluctant jurors. In cases that are becoming increasingly complex because of technology and increased regulation, it is very dubious that a jury of twelve laymen has the proper knowledge necessary to reach an optimal decision. There are various other more nuanced critiques of the jury system but suffice it to say, while I see the advantages (e.g. a check on state power), the disadvantages are numerous and a concern.

The right to counsel is another positive right provided by the 6th Amendment. Poor defendants should not be disadvantaged because of their poverty and therefore should be provided with counsel. But, who is to provide the counsel?  At times, the Supreme Court has held that in certain cases, public counsel does not need to be provided by the state. Whether public counsel should always be provided is arguable, but even if it is morally correct, the problem is that the public defenders provided are not significantly compensated and are overworked.

So, the 6th Amendment is a mixed bag. But, the positives are important enough checks on the states power that it sneaks in at number five.

3 responses to this post.

  1. Posted by Dan on August 17, 2009 at 3:54 AM

    Does “impartial jury of the State and district,” as written, mandate jury duty? Or is jury duty just the standard (and only) implementation of that part of this amendment?


  2. Posted by Josh on August 17, 2009 at 2:02 PM

    Good point, Dan. With the exception of petty offenses, the Supreme Court has basically interpreted that clause as requiring the provision of a jury consistent with common law, which traditionally involves jury duty, a jury of twelve peers (although, after incorporation they were a bit more flexible on following the common law to the letter).

    Regardless, I think a solid argument can be made that an impartial jury does not require jury duty at all. In fact, you could argue that those with more expertise on the law are more likely to be impartial (and less likely to be swayed by emotions and other extraneous factors) and would be better suited to serve on a jury than those forced to serve through jury duty.


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