The Antidemocratic Sixth Amendment

63 Pages Posted: 9 Jun 2016 Last revised: 9 Jan 2017

See all articles by Janet Moore

Janet Moore

University of Cincinnati College of Law

Date Written: June 8, 2016


Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel. Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.

Keywords: right to counsel

Suggested Citation

Moore, Janet, The Antidemocratic Sixth Amendment (June 8, 2016). 91 Washington Law Review 1705 (2016), U of Cincinnati Public Law Research Paper No. 16.10, Available at SSRN:

Janet Moore (Contact Author)

University of Cincinnati College of Law ( email )

Post Office Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0126 (Phone)
513-556-1236 (Fax)

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