Toward an Expanded Right to Legal Counsel

In declaring America’s independence, the emerging nation’s founding fathers included this memorable statement of principle:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In further recognition of the unalienability of these rights, the Constitution itself provides for a guarantee of legal assistance when faced with the judicial deprivation of life or liberty:

In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.

Const. Am. VI.

The Sixth Amendment’s affirmative provision is robust and significant, but it attends only to two of the three unalienable rights identified in the Declaration. Of course, that third right, “the pursuit of Happiness,” is, at least on the surface, little more than a Jeffersonian flourish. It barely disguises the origin of the complete statement of rights, however, which Jefferson borrowed from John Locke, the English political philosopher, who referred to the importance of protecting individual’s life, liberty, and property.

If the Constitution protects us– by way of the right to legal counsel– when the government threatens to deprive us of life or liberty, shouldn’t that right also extend to deprivations of property?

United States governing bodies at the federal, state, and local levels continue to exercise their authority to take private property by eminent domain, a legal theory derived from the British concept of the divine right of the monarch. The Constitution, in the Fifth Amendment, demands that the government afford individuals both due process and just compensation in such instances, but there is no express right to legal counsel in order to help guarantee the protection of those Fifth Amendment rights of individuals facing eminent domain takings. If we truly regard property rights as unalienable as our rights to life and liberty, shouldn’t the protective right to legal counsel be extended to cover all three?