Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

Amendment VI:

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.

With the Constitution in general, and the Bill of Rights in particular, we speak of liberty. There can be no doubt that the Constitution and the Bill of Rights are liberty preserving and any act against liberty taken by the government runs against the true intention of the documents. But in the section of the 6th Amendment that guarantees the right to have the assistance of counsel we see equality creep in to the picture as well. The basic assumption is that if one is to receive a proper hearing one must have someone represent them with legal expertise. A trial by any other means would leave the one unrepresented by legal counsel at a competitive disadvantage. In that case, the matter would be decided not according to the law but by the superiority of the argument and legal expertise. The consequence would be that someone’s liberty could be deprived in a way inconsistent with the law and its application to the facts thus depriving the defendant of due process. This part of the amendment operates under the assumption that to have liberty, each citizen must have equal protection under the law. When the law is applied unfairly, or intentionally advantages some over others, liberty is sacrificed. This has nothing to do with equality of outcome or equality of opportunity as those matters are commonly discussed in contemporary policy debates. Rather, it simply states that the law must be the final determinant of when someone’s liberty may be restricted, not chance or caprice.

The rule of law is commonly understood to be something of an unbiased arbiter. It should not prejudice or hold bias against anyone for reasons unrelated to the relevant facts. The law also makes outcomes predictable. If the law is applied the same in all cases then I should know what to expect in all cases. The law produces a certain amount of certainty when it is known and unbiased. In a nation governed by the rule of law, I know what to expect from the law and from the government. Under a government without a known and settled law, only fear reigns with any predictability. Our futures and our liberty become uncertain and entirely dependent upon the will and whim of those in charge without equal protection under the law. This is why the law must be applied equally for equality under the law implies that those who make and enforce the law are as equally restricted by it as I am.

This holds true for relations between individuals as well. If the person I am dealing with has more liberty under the law than I do then I am at a disadvantage, one imposed by the state. For instance, if the government protects the right of individuals to make private contracts, and will also enforce the contracts if one side breaches it, then I can enter into an agreement knowing that the person will live up to their end of the bargain and if they don’t I have recourse through the government. But, if the government only made it so I was bound by the contract, and not my business associate, then he could exploit this inequality in the law to his advantage. Under such a scenario there would be no reason to have contracts and business relationships would deteriorate. Even in a free market society, where one is allowed to succeed or fail in the market on their own, the government must uphold the rule of law equally so that it is our liberty that decides our success and failure and not the government. If the law is unequally applied then it is not our liberty that is deciding the outcome, but those who make the law determine our fate, thus making it not a free market at all.

And this brings us back to the court room. I am not an attorney, nor did I sleep at a Holiday Inn last night. So if you pitted me against a successful trial lawyer I would get creamed. The only chance I would have of winning is if I had counsel. The right to counsel guaranteed by the 6th Amendment makes sure that I cannot be denied counsel by the other party or by the government. If the government really wanted to send me to jail, regardless of whether I was really guilty, all it would have to do is say I wasn’t allowed to have an attorney represent me. Think of what would happen if the government could use its power to deny me the one thing that would help guarantee a fair trial. The government could have somebody with legal specialization represent its interests but I would not have the same right. This would be unequal protection under the law and my fate would not be determined by the law but by its unequal application. Equality, the kind of which I write, is an essential component to the maintenance of liberty.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes,, Christian Science Monitor,, and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun. He is a frequent contributor to and maintains his own blog at

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March 29, 2012

Essay #29

3 replies
  1. Marc W. Stauffer
    Marc W. Stauffer says:

    “Blind Justice” is the theory that the laws that govern our liberty should be viewed objectively with the determination of innocence or guilt made without bias or prejudice. It is the idea behind the United States Supreme Court motto “Equal Justice Under Law” and is symbolized by the blindfolded statue of Lady Justice which is the symbol of the judiciary.
    Liberty….that’s really what this clause is all about….the right to maintain or express your liberty, or to defend your right to maintain or express it. Funny, how we live in a society that cherishes its liberty yet is always trying to limit another persons liberty or right to express it.

  2. Hank
    Hank says:

    What happened to any interest in the 10th amendment? I’ve been shouting this from the rooftops for years. But it seems to fall on deaf ears.

  3. Kyle Scott
    Kyle Scott says:

    The 10th Amendment coverage is planned for commentary in a few weeks. It hasn’t disappeared and many are yelling about (for) it. It does fall on deaf ears by those in positions of national power however, because, a renewal of the 10th Amendment limits their power. Of course, you could always point to 1865 as the beginning of the decline of the 10th Amendment.


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