Thomas, J., dissenting
ment, as most States adopted some kind of statutory or constitutional provision providing the accused the right to retain counsel. W. Beaney, The Right to Counsel in American Courts 14–22 (1955). In fact, at least 12 of the 13 States at the ratification of the Constitution had rejected the English common-law rule, providing for the right to counsel in at least some circumstances. See Powell, 287 U. S., at 64–65; id., at 61–64 (surveying the States’ right-to-counsel provisions); see also Betts v. Brady, 316 U. S. 455, 465–467 (1942) (discussing early state constitutional provisions), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963). Read against this backdrop, the Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel.
This understanding–that the Sixth Amendment did not require appointed counsel for defendants–persisted in the Court’s jurisprudence for nearly 150 years. See United States v. Van Duzee, 140 U. S. 169, 173 (1891) (“There is, however, no general obligation on the part of the government [to] retain counsel for defendants or prisoners”); Bute v. Illinois, 333 U. S. 640, 661, n. 17 (1948) (“It is probably safe to say that from its adoption in 1791 until 1938, the right conferred on the accused by the Sixth Amendment… was not regarded as imposing on the trial judge in a Federal court the duty to appoint counsel for an indigent defendant”). Nor evidently was there any suggestion that defendants could mount a constitutional attack based on their counsel’s failure to render effective assistance.[1]
- ↑ A defendant could bring a state-law tort action against his attorney. As one commentator explained:
“An attorney is bound to exercise such skill, care and diligence in any matter entrusted to him, as members of the legal profession commonly possess and exercise in such matters…. He will be liable if his client’s interests suffer on account of his failure to understand and apply those
