by Jim McCarthy

Criminal justice at the local level in Virginia is the province of the 120 Commonwealth’s attorney offices funded primarily by the state, with some also receiving local supplement. Indigent defendants may avail themselves of the Sixth Amendment right to counsel through 28 public defender offices. Many other indigent defendants will be represented by court appointed counsel from lists and attorneys overseen by the Virginia Indigent Defense Commission (VIDC) which is the statutory organization for public defenders.

The genesis of the existence of public defenders arose in 1963, ten years before Roe v Wade, with the SCOTUS opinion in Gideon v Wainwright. The defendant, Clarence Earl Gideon, was sentenced to five years in prison after trial at which he requested the appointment of counsel to defend him. At the time, states were mandated to consider appointed counsel only in capital offense proceedings, not for lesser offences which might involve imprisonment. The unanimous court in Gideon concluded that the Sixth Amendment did not distinguish between capital and non-capital cases, finding that a defendant faces the danger of criminal conviction “because he does not know how to establish his innocence.”

This hallmark decision and its progeny later gave rise to the familiar Miranda warning (Miranda v Arizona, 1966), a required notification by police in a custodial setting:

You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.


and Miranda are derived from principles in the Fifth and Sixth Amendments to the Constitution which are reasonably inferred from those provisions and not literally expressed. This type of jurisprudential reasoning pervades virtually all court decisions in some manner and is a commonly held value or belief in fairness and equity. Its antithesis is characterized as originalism or textualism whereby judicial reasoning is deemed to require a textual or literal reference in the Constitution or legislation upon which to base a decision.

In criminal cases, the Fifth Amendment precludes an accused from being compelled “to be a witness against himself” or be “deprived of liberty … without due process of law.” The Sixth Amendment guarantees that the criminal defendant “have compulsory process for obtaining witnesses” and “to have the assistance of counsel for his defense.” Neither provision contains language conferring a right to court-appointed counsel; nor a right to remain silent; nor to cease answering questions. Were these conclusions reached by the justices based upon personal views? Are they reasonable, lawful? Does reliance upon them for decades create a fundamental entitlement?

Apparently, originalist justices are not of the opinion that precedent or reasonable interpretation of the Constitution or legislation may issue in the absence of text or clear language of such decision. That view is the essence of the leaked draft opinion in the abortion controversy by five justices. The Roe decision, they declare, was egregiously wrong when decided nearly 50 years ago because there is no basis in the Constitution for the protection of privacy.

In Garza v Idaho (2019), Justices Thomas and Gorsuch, joined in part by Alito, argued for the overturn of Gideon asserting it was wrongly decided in failing to identify a textual basis for appointed right to counsel. Thus, despite a statement limiting the overturn of abortion rights to that issue alone, the draft opinion’s line of jurisprudence as can be seen in Garza involves a much larger universe of established rulings. Privacy in marriage with respect to the use of contraception decided in Griswold v Connecticut (1965) is vulnerable. In that case, the court adverted to a “penumbra of privacy” based upon a view of the Bill of Rights of the Constitution together with the Fifth and Fourteenth Amendments. Writing for the majority, Justice Douglas frankly acknowledged that the Constitution does not mention the term privacy.

The logic of reductio ad absurdum may encourage and drive the present cohort of justices to an ultimate end of Constitutional jurisprudence. The 1803 decision in Marbury v Madison arrogated to SCOTUS authority to declare a law to be invalid upon judicial review. Chief Justice John Marshall crafted the ruling determining that a provision of the Judiciary Act of 1789 was unconstitutional, conflicting with the “supreme law of the land” in Article VI. Neither judicial review nor a power to declare a law unconstitutional exists in legislation or the Constitution.

Conceivably therefore, in a contemporary case or controversy, the originalist majority would be bound to agree that SCOTUS has no power to declare a law of Congress or a state’s unconstitutional due to the absence of a textual anchor. Combined with the reservation of powers to the states (Ninth and Tenth Amendments) such conclusion is inevitable. As precedent is no barrier, the originalists on the Court would be consistent in dismissing judicial review itself as a nullity. It follows that Justice Scalia’s magnus opus in Heller, interpreting a right to firearms by one and all, is fallacious since the Constitutional reference to the right to bear arms applies only to militias not individuals. Moreover, Heller has been in place for only 14 years, a mere bagatelle of time in the eyes of originalists.

Circling back, Virginia, without public defenders, would be on a path to increase its prison population, ensuring innocent, mostly poor, defendants are jailed while police misconduct thrives in the absence of Miranda. A certain amount of chaos is expected as Constitutional clarity is exercised.

In the Old Testament, Gideon and his overmatched forces frightened the enemy into disbanding camp after surrounding it with blaring trumpets and flaming torches. “Lord, what fools these mortals be,” says Robin Goodfellow or Puck in Shakespeare’s Midsummer Night’s Dream musing about human folly. Look for the Constitutional provision enumerating nine justices.

Jim McCarthy is a retired New York City attorney living in Virginia.

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8 responses to “Silence of the Trumpets”

  1. f/k/a_tmtfairfax Avatar

    Neither Gideon nor Miranda were based on emanations and penumbras. Are there emanations and penumbras in other constitutional amendments? What about the Second Amendment? Or do justices get to pick and choose where these mystical phenomenon exist? And, if so, what justifies finding emanations and penumbras that yield constitutional rights in some parts of the Constitution but not in others?

    If one rejects using the original meaning of the text of the Constitution, including the amendments, it follows as night from day that any majority of justices can reject a prior understanding of the meaning of words and substitute their own at any time. If they cannot do that, we have the situation where the meaning used by one court binds all future courts. That means that some undefined group of justices and not the drafters of the Constitution or some subsequent group of justices are truly supreme. And thus we see some urging follow precedent here but not there, while others argue vice versa.

    Marbury v. Madison is easily understood as the Court deciding that if the Constitution is the fundamental law of the Nation, it necessary takes precedence over a law passed by Congress. And a law that is inconsistent with the Constitution fails. Alternatively, we have a situation where the Constitution is meaningless as each Congress can modify, indeed, nullify, any part of the Constitution.

    Privacy is important. So why is it only protected by an emanation and a penumbra? In the almost 60 years since Griswold, why hasn’t Congress developed a comprehensive privacy law or, as some states have done, a constitutional amendment defining and protecting privacy?

    My con law professor had clerked for Justice Brennan and was a good man of the left. But we spent quite a bit of time debating the existence and rationality of emanations and penumbra. We were taught that, unlike legislation, the process and reasoning supporting a judicial opinion was more important than the result.

    1. Matt Adams Avatar
      Matt Adams

      “My con law professor had clerked for Justice Brennan and was a good man of the left. But we spent quite a bit of time debating the existence and rationality of emanations and penumbra. We were taught that, unlike legislation, the process and reasoning supporting a judicial opinion was more important than the result.”

      It is judicially accepted that Roe was the wrong case to determine a right to abortion and even more so it was incorrect to root that right in the Privacy Clause vs the Due Process Clause. However, I’m not a litigator but the person who stated that opinion was a Supreme Court Justice.

    2. Nancy Naive Avatar
      Nancy Naive

      If I torture a person for an act of terrorism, would trying them for the crime thus have double jeopardy attached? “… nor twice be placed in jeopardy of life and limb for the same offense…”

      1. f/k/a_tmtfairfax Avatar

        And what does this mean? I don’t see any relationship between your conduct torturing someone and a later decision of a U.S. Attorney, perhaps, after a grand jury indictment, to prosecute the person you tortured for terrorism-related offenses.

        Double jeopardy – one cannot be tried for the same or similar offense after one has been acquitted after a trial – has been a part of English common law for hundreds of years. Felt important by American leaders, it’s part of the 5th Amendment. Incidentally, it is no longer part of English law since 2003. But once again, it has nothing to do with your conduct as a private person.

        1. Nancy Naive Avatar
          Nancy Naive

          Not me personally. If a law enforcement officer arrests someone for a crime/offense and tortures them for whatever reason, say specfically, waterboarding, beatings, positional restraints — all known to possibly end in death… etc.

          Double jeopardy does not say anything about a “trial”, specifically it says “life and limb”. Only nonliteralists could conclude that meant a trial and only a trial.

    3. James McCarthy Avatar
      James McCarthy

      Perhaps. But when the “wrong” result has engendered decades of reliance by citizens, overturning that result requires great care. While you may easily understand Marbury, others can conclude in the absence of textual nexus in the Constitutionthat it was wrongly decided.

      The emanations and penumbras you decline to accept were reasoned from the same Constitutional ether as Marbury and Heller and Gideon and Miranda. Since the Constitution itself provides for amendment, such are far from meaningless.

      Congress’s failure to codify privacy or other judicially determined rights speaks more to the body’s respect for an equal branch of government than a fear of those rights being usurped for that same branch. And what will happen to those state laws protecting privacy?

      Intellectually it is not difficult to ignore or reason away precedent. The consequences of doing so are another matter of jurisprudence. As for the Second Amendment, ambiguous history was scoured by Scalia to arrive at his conclusion. Its present interpretation is also mere precedent.

  2. Nancy Naive Avatar
    Nancy Naive

    Activist Justice — a term once applied to those justices appointed by Democrat presidents. For example, the 7 justices who signed the majority opinion on Roe v. Wade… oh wait, no.

  3. LarrytheG Avatar

    so did we skip over the Miranda Warning thing? Is that really “Constitutional”?

    and the 2a… does ‘arms’ literally mean ANY kind of “arms” and restrictions on type are not Constitutional either?

    I see the textualists the same way I see Libertarians. They pick and choose what compromises they make but often live in a make-believe world of what they want to believe rather than the reality of the practical world we must all live in – and be governed by.

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