An examination of the history and text of the Constitution, the ratification debates, and the earliest cases establishes that it is Article I’s necessary and proper clause, not Article III’s “judicial power” or “courts,” which controls any inherent judicial authority. As such, Congress has near plenary authority over the structure and procedure of the federal courts.

With the power of Congress in mind, however, the judiciary has substantial authority to act when Congress has not. The Framers created a remarkably flexible judicial branch based upon the way common law courts operated in the late-18th century. Those courts regularly acted in the absence of legislative authority in a multitude of ways, bound by the common law and current practice, but not by legislative silence. Thus, as long as a federal court’s use of the inherent power has not been foreclosed by an existing Act of Congress and is reflective of the judicial power – i.e. helpful to the deciding of cases – courts are empowered to act, as long as they understand that Congress can always fix what it does not like.

This analysis also best explains what courts have done since the framing. While the Supreme Court has repeatedly claimed an inherent power strong enough to invalidate a congressional act in dicta, it has never actually invalidated one, even in situations where Congress has substantially impinged upon traditional areas of inherent power like rule making or contempt. This understanding of congressional and judicial power thus offers an elegant solution to the thorny problem of inherent powers and squares the circle by fitting a unified theory to the history, language and structure of the Constitution and the more modern, pro-judiciary case law.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered by Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation.

Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong on the merits, but is so bad that it is affirmatively dangerous and never should have been published. The efficacy of these arguments is crippled, however, by claim that the individual rights theory of the Second Amendment is fatally, obviously, and laughably wrong as a matter of constitutional theory, case law, and history. Unfortunately for Spitzer the Supreme Court held the exact opposite by a vote of 9-0 in District of Columbia v. Heller months after the publication of the book.

Further, Spitzer presents a remarkably weak case of causation between his alleged faulty scholarship and any resulting governmental actions. Even if Spitzer is correct that the scholarship he highlights is fatally wrong, it is quite a leap to say that this scholarship caused executive branch actions like George W. Bush's claim of expansive executive powers after 9/11 or George H.W. Bush's claim of an inherent line item veto.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.