Document Type



Summer 7-26-2012

Embargo Period



The Sixth Amendment's Textual Core




The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, broadly requires that defendants be provided seven fundamental procedural protections. Over the course of the past five decades, the scope and meaning of these critical safeguards have undergone tremendous change, with series of expansive and restrictive readings. Through this jurisprudential development, several provisions of the Sixth Amendment have been interpreted in a manner that contravenes the plain meaning of its text, rendering the Amendment far less protective of individual liberty. After developing a comprehensive historical account of the Court’s Sixth Amendment jurisprudence, this Article provides a framework for understanding the origins of the textually-inconsistent readings of the Sixth Amendment, tracing them to the interplay between the Sixth Amendment and the Fourteenth Amendment’s Due Process clause. In addition to discussing the effects of the incorporation of the Sixth Amendment through the Due Process clause, the Article analyses the Court’s doctrinal entanglement of these two clauses. Then, in light of the Court’s recent landmark decisions disentangling the Sixth Amendment, this Article proposes alternate, textually consistent constructions for the various entanglements of the Sixth Amendment, ones that would be more faithful to the critical role of these safeguards in protecting individual liberty.

Included in

Law Commons