They teach us in school how the three branches of government in the Constitution check and balance one another. The Bill of Rights, however, has two other checks and balances in place. Interestingly, they are in the private sector, not government. The First Amendment guarantees us the freedom of the press and the Sixth Amendment guarantees us the assistance of counsel in criminal prosecutions. These are important private sector jobs, so important they have constitutional significance and deserve special attention.

When formulating the Bill of Rights, the Founders must have realized that government cannot be counted on to check itself. They needed to go outside the three branches and enter the private sector. By establishing rights to a free press and the assistance of criminal defense counsel, regular private citizens could check all government officials on a daily basis.

A free press keeps the public informed. Without it, we could not effectively exercise our right to vote or hold elected officials accountable. It also shines a light on government fraud, waste and abuse. Whether you were a farmer, teacher or merchant in 1802 or 2002, you were busy. You needed the press to watch over government on your behalf. You could then use the information provided by the press to support your elected government officials, oppose them, or something in between. Regardless, without a free press, a majority of us would be clueless and a clueless electorate is no electorate at all. A free press also holds the judicial branch accountable, since the accused has the right to a public trial and the public has a presumptive First Amendment right of access to judicial proceedings and publicly filed court documents.

Criminal defense counsel ensure that individual rights are protected during the criminal justice process. The Founders addressed certain rights for the accused in the Bill of Rights recognizing the awesome power that a centralized government has against an individual. One of those rights is the assistance of counsel. It is an amazing system where the government can lose in its own courts; but that can only happen when the defendant has a fighting chance. Defense counsel gives the defendant that chance and stands guard over his or her rights. They are in the best position to advocate for the accused and recognize errors by prosecutors and courts.

As far as I can tell, the press and criminal defense counsel are the only two private sector jobs mentioned in either the Constitution or Bill of Rights. This is significant. These jobs have an essential role in our system of self-governance. Nevertheless, the press is attacked on a daily basis and court-appointed criminal defense counsel budgets are being squeezed. When discussing issues regarding the press or criminal defense counsel, we should be mindful that these jobs have constitutional significance and are critical in maintaining our system of government.