HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 43, NUMBER 3 SUMMER 2020 ESSAYS THE ROLE OF THE EXECUTIVE William P. Barr ........................................................................ 605 CIVIC CHARITY AND THE CONSTITUTION Thomas B. Griffith ................................................................... 633 ARTICLES SIXTH AMENDMENT FEDERALISM Louis J. Capozzi III ................................................................. 645 TAKING ANOTHER LOOK AT THE CALL ON THE FIELD: ROE, CHIEF JUSTICE ROBERTS, AND STARE DECISIS Thomas J. Molony .................................................................... 733 NOTE DEATH QUALIFICATION AND THE RIGHT TO TRIAL BY JURY: AN ORIGINALIST ASSESSMENT Douglas Colby ......................................................................... 815 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief NICOLE M. BAADE Deputy Editor-in-Chief Articles Chair R.J. MCVEIGH Managing Editors JACOB THACKSTON HUGH DANILACK AARON GYDE Executive Editors Senior Articles Editors ALEX CAVE AARON HSU DOUGLAS COLBY Deputy Managing Editors KEVIN KOLJACK ANASTASIA FRANE MAX BLOOM RYAN MAK JOSHUA HA CHASE BROWNDORF JAMES MCGLONE ADAM KING JOHN KETCHAM JOEY MONTGOMERY BRIAN KULP STUART SLAYTON WHITNEY LEETS Articles Editors ANNA LUKINA Chief Financial Officer NICK CORDOVA JOHN MITZEL DYLAN SOARES JAMIN DOWDY JASJAAP SIDHU AARON HENRICKS BRYAN SOHN Deputy Chief Financial Officer JASON MUEHLHOFF DOUG STEPHENS IV COOPER GODFREY ALEX RIDDLE MATTHEW WEINSTEIN OLIVER ROBERTS Communications Manager JAY SCHAEFER Notes Editors WENTAO ZHAI JESSICA TONG DAVIS CAMPBELL TRUMAN WHITNEY BRIAN KULP Events Manager VINCENT WU TRUMAN WHITNEY Website Manager Social Chair MARK GILLESPIE JAY SCHAEFER Senior Editors JOHN BAILEY AARON HENRICKS OLIVER ROBERTS VINCENT WU NICK CORDOVA JOHN MORRISON JAY SCHAEFER WENTAO ZHAI JAMIN DOWDY JASON MUEHLHOFF ISAAC SOMMERS ROBERT FARMER ALEXANDRA MUSHKA JESSICA TONG ALEXANDER GUERIN ALEX RIDDLE AARON WARD Editors JOHN ACTON JUAN FARAH JAKE KRAMER BRYAN POELLOT JASON ALTABET WILLIAM FLANAGAN BENJAMIN LEE NATHAN RAAB MATT BENDISZ CATHERINE FRAPPIER MAGD LHROOB JACOB RICHARDS AUGUST BRUSCHINI CHRISTOPHER HALL KEVIN LIE BENJAMIN SALVATORE ALAN CHAN JACOB HARCAR PRANAV MULPUR ADAM SHARF CATHERINE COLE CHRISTIAN HECHT DANIEL MUMMOLO DUNN WESTHOFF JONATHAN DEWITT ROSS HILDABRAND ELI NACHMANY ASHLEY VAUGHAN TYLER DOBBS MARIA HURYN CARSON PARKS JUSTIN YIM RYAN DUNBAR ALEXANDER KHAN HUNTER PEARL Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Massachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are renewed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably prepared using Microsoft Word. Views expressed are those of the authors and do not necessarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2020 by the Harvard Society for Law & Public Policy, Inc. PREFACE COVID-19 has created a pandemic unprecedented in modern times. Schools, businesses, restaurants, and even churches have closed their doors to limit the spread of the virus. Many of life’s most cherished events, including weddings, graduations, births, baptisms, and, perhaps most tragically, funerals, have been postponed, conducted virtually, or limited to only immediate family members. It is times like these that can bring us together as a nation in thought, prayer, word, and action. And there are many accounts of such unity and mutual encouragement. However, the pandemic has also highlighted the divisive parti- san rhetoric that unfortunately characterizes this country—a divisiveness that threatens, among other things, our constitu- tional structure and the liberty it guards. In this Issue of the Harvard Journal of Law & Public Policy, we have the honor of publishing two Essays based on speeches addressing constitutional concerns related to partisanship in this country. In one, Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit laments the loss of civic charity— the “spirit of amity” and “mutual deference” as George Washington put it—that helped forge the Constitution and is required to maintain it. In another, Attorney General of the United States William Barr—in the Nineteenth Annual Barbara K. Olson Memorial Lecture at the Federalist Society’s 2019 National Lawyers Convention—condemns partisan attacks on the executive power that the Framers enshrined in the Constitution, particularly those directed against President Donald Trump’s Administration. He warns, “In this partisan age, we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our constitu- tional structure.” Special thanks are due the editors from other law schools who volunteered to stay on for yet another issue to prepare Attorney General Barr’s speech for publication. We could not have published it without their outstanding work. We are delighted to follow these Essays with two excellent Articles on current legal issues. The first Article, by Louis Capozzi, is a fifty-state survey of the right to appointed counsel in misdemeanor cases and shows that many states have pro- Preface ii vided a broader right to counsel than that required by the Sixth Amendment of the U.S. Constitution. Capozzi provides a di- verse array of approaches to misdemeanor justice that states may consider instead of a one-size-fits-all approach. In the sec- ond Article, Professor Thomas Molony traces the history of opinions written or joined by Chief Justice Roberts in cases in- volving stare decisis with an eye to how the Chief Justice might rule in a case challenging Roe v. Wade. He concludes that the Chief Justice’s devotion to judicial restraint and the rule of law would lead him to vote in favor of overruling Roe only if a chal- lenged abortion regulation cannot be upheld on narrower grounds and if reaffirming Roe would cause more harm to the Constitution than casting the abortion question out of federal courts and back to the States. Finally, we have the pleasure of publishing one of our own in this Issue. In another piece on the Sixth Amendment, Douglas Colby argues that death qualification—the process of removing potential jurors who are unwilling to impose the death penalty— does not violate an originalist understanding of the the Sixth Amendment right to an impartial jury. I end this preface of my last Issue on a more personal note. It has been a true honor to serve as Editor-in-Chief of this excep- tional journal. The Journal has been my home since my first year of law school. As Editor-in-Chief, I have seen all of the hard work and dedication that editors put into this journal at every stage. More than that, I have the privilege of calling each and every member of this journal not only a classmate and col- league, but a friend. It is bittersweet to be graduating and leav- ing behind my work on the Journal, but I am confident the next masthead will continue its legacy of excellence, and I look for- ward to seeing the bright futures of all of its members unfold. Nicole M. Baade Editor-in-Chief THE FEDERALIST SOCIETY presents The Nineteenth Annual Barbara K. Olson Memorial Lecture Featuring Attorney General William P. Barr The Role of the Executive November 15, 2019 The staff acknowledges the assistance of the following members of the Federalist Society in preparing this speech for publication: National Editor Hugh Danilack Harvard Law School Executive Editors Michael R. Wajda Timothy J. Whittle Duke University School of Law University of Virginia School of Law General Editors Cameron L. Atkinson Cody Ray Milner Quinnipiac Univeristy School of Law George Mason University Antonin Scalia Law School Sarah Christensen George Mason University Ashle Page Antonin Scalia Law School University of North Carolina Law School Mary Colleen Fowler Steven M. Petrillo II University of Kansas School of Law Rutgers Law School—Camden Stacy Hanson Cynthia M. Tannar University of Illinois College of Law Georgetown University Law Center Kelly L. Krause Nicholas J. Walter Marquette University Law School Arizona State University Sandra Day O’Connor College of Law Abbey Lee University of Kansas School of Law THE ROLE OF THE EXECUTIVE WILLIAM P. BARR* Good Evening. Thank you all for being here. And thank you to Gene Meyer for