Gideon v. Wainwright

[Emsworth]

The decision was correct as far as the incorporation was concerned. The Supreme Court had earlier decided in Johnson v. Zerbst that the Sixth Amendment compels the federal government to provide attorneys for defendants who could not afford to pay them. Gideon v. Wainwright correctly extended this rule to the states, under the Fourteenth Amendment.

As with all incorporation cases, the caveat that the Supreme Court reached the decision for the wrong reason (under the due process clause rather than the privileges or immunities clause) would still apply, of course.

[Emsworth]

Correctly decided.  The right to an attorney is a right of the people.  Thus states are compelled to provide them.

Well, it's not that simple. There is a right to bear arms, but the states are not required to provide free firearms to those who cannot afford them.

The text alone would not justify requiring states to provide attorneys to poor defendants. One would instead have to appeal to various precedents that might have indicated the original understanding.

[Emsworth]

The argument, quite correctly, goes that you cannot have due process of law if you cannot understand the process.

That is not so. Depriving someone of life, liberty, or property with due process of law means depriving someone of life, liberty, or property according to the procedures laid down in the law. It does not matter if the people understand them or not. If the law has prescribed a particular procedure, and that procedure has been followed, then the due process requirements are satisfied.

Consider the example of a dangerous insane person. Surely, the law can outline procedures for confining him to a mental institution. But just because he does not understand the procedure, does it follow that the procedure is unconstitutional?

You must be logged in to read this quote.

That would not follow--the same argument could be made with the right to bear arms.

[Emsworth]

Can a person recieve proper due process if they do not understand the process?

Due process has nothing to do with whether the process is fair or not. It has to do with whether the process is authorized by law.

The due process clause has its roots in the Magna Carta, which provided, "'No Freeman shall be taken, or imprisoned or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled ... [except] by the Law of the Land." According to English common law, the term "due process of law" and "by the Law of the Land" were synonymous. This is indicated by the fact that later statutes used the terms interchangably. One statute passed in 1350 declared, "none shall be imprisoned nor put out of his Freehold ... unless it be by the Law of the Land"; another in 1363 enacted, "no man be taken or imprisoned, nor put out of his freehold, without process of law."

In 1642, Lord Chief Justice Coke confirmed that "due process of law" and "by the Law of the Land" meant the same. The U.S. Supreme Court agreed, holding in Murray's Lessee v. Hoboken Land & Improv. Co. (1856), that "The words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words 'by the law of the land.'"

Thus, when a state legislature has made a law, that law becomes "the law of the land," and the procedures prescribed by that law become "due process." The due process clause never restricts the actions of the legislature. It only prevents the executive and judicial branches from acting contrary to the law.