According to page 56 of the Illinois State Board of Elections's 2020 Candidates' Guide, candidates for State's Attorney for counties in Illinois are required to be licensed attorneys.
However, I believe that it's possible that that requirement could be challenged; on the grounds that it violates either the Sixth Amendment to the Constitution for the United States, the Ninth Amendment, or both.
I believe that the state doesn't have the authority to require a license in order to run for, or be seated as, the position of state's attorney, because the state doesn't have the authority to require a license in order to practice law in the first place.
The Sixth Amendment recognizes a right to self-representation; i.e., the right to defend oneself in court. However, that right is not unlimited (in the eyes of the law), as the right applies only at trial, for criminal suspects, and not on appeal.
Still, in civil proceedings, you are required to represent yourself. A state's attorney or district attorney would be representing the state, the public, and alleged victims of criminal misdeeds, rather than himself, of course.
But my hope is that the legitimacy of licenses for attorneys (and professional licensing monopolies), in the first place, is what matters here, rather than the legal venue or the type of law being practiced.
If there's any precedent that supports the idea that defending
yourself in court – and exercising your right to
self-representation - in any way counts as "practicing law",
then it's possible that it could be successfully be argued that
courts should find that nobody can be prevented from practicing law
on account of lack of a license.
Especially considering that, if a person cannot be prohibited from acting as his own attorney in criminal proceedings, there should be no reason why the same person should be prohibited from representing himself in any venue.
Moreover, the 9th Amendment says that "the enumeration in this constitution of certain rights shall not be construed to deny nor disparage certain rights retained by the people". This has been interpreted to mean that the mere fact that a right isn't listed in the Constitution, doesn't necessarily mean that it isn't one of our rights.
If something can't be done without a permit, then it's not a real right or a freedom; instead, it's being done by permission and privilege. The 9th Amendment recognizes our freedom to retain our freedoms, despite the state's efforts to turn those freedoms into paid privileges, which it sells for profit, and from whose sale it has the exclusive right to profit.
Because of this problem – the turning of freedoms into privileges - the people should (and do) have a right and a responsibility to limit the state's authority to require a license or permit, in order to exercise a certain right, or to work in a certain profession.
Because our limited right to represent ourselves in court without a lawyer is recognized, the idea that the state can or should require anyone to have a license in order to practice law, should be thought of as ridiculous, and as an obvious violation of the natural right to defend oneself in court.
Requirements that a
person must be a licensed attorney in order to run for, or be seated
as, a state's attorney or district attorney, should be challenged on
6th and 9th Amendment grounds.
The
ability and skill which is necessary to determine whether a person
should be charged with a crime, and whether a grand jury should be
convened, results from the same types of learning, education,
research, and training, which any person with a functioning brain are
capable of doing from the time they become able to read; including
persons who may be charged with crimes in the future.
According to my interpretation, the 9th Amendment implicitly recognizes a pre-existing natural right to enter any profession (or, at least, to attempt to; so non-attorneys should at least not be precluded from running), and the 6th Amendment recognizes a pre-existing right of criminal suspects to defend themselves in court.
There is no particular reason why anyone – criminal suspect or prosecutor alike - should not be able to act as legal counsel, provided that they comprehend the law of the relevant jurisdiction well enough. States can decide that the matter of how well they comprehend the law should be decided through a bar examination, but states could just as well decide that the people should be free to make that determination on their own, through an election.
As
long as the position is publicly elected, in an election that is
transparent enough to allow voters to make a thoughtful judgment
about whether the person is qualified to charge criminal suspects,
the people should have the right to make that decision, instead of
implementing attorney licensing systems. After all, the governor is
not required to be a licensed attorney. So, then, why should the
state's attorneys – whom are in lower executive positions than the
governor – be required to do the same?
It is each state's
decision how (or whether) to regulate the licensure of attorneys, if
they choose to require them to be licensed. But no state is obligated
to license attorneys, because of the contents of the 9th
Amendment (rights found in Constitution may not disparage other
rights retained by the people) and 10th Amendment
(“states' rights”).
Inspired by the ideas of a candidate for State's Attorney of Lake County, Illinois,
who wishes to remain anonymous
Written on September 24th, 2020
Edited and Expanded on September 29th, 2020
Published on September 29th, 2020
No comments:
Post a Comment