“I ought to be the darling of the criminal defense bar,” Scalia once said. “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.” Scalia was a jurist with a fidelity to what he dubbed the Constitution’s “original meaning” as was reflected in the written text.
Originalism, as applied by the late Justice Antonin Scalia, was a theoretical push back against the notion of a “living and evolving Constitution.” Originalism, generally associated with conservatism, compels its adherents to interpret the Constitution according to what its words meant at the time they were adopted. Originalism traces its roots back to Judge Robert Bork. In 1987 President Ronald Reagan nominated Bork, a former Solicitor General and Yale Law Professor, to the Supreme Court but the Senate rejected his nomination. Conservatives contend Bork was denied his rightful position on the Supreme Court by liberals bent on warping constitutional language for partisan purposes.
Despite its wholesale rejection by liberals and progressives, originalism has done more in the last two decades to secure constitutional rights of the accused than any well-meaning progressive activists or bipartisan reforms. Originalist judges ascertain constitutional meaning from a host of sources, from consensus historical background materials to dictionaries and grammar books issued at the time of adoption. By analyzing the text in this fashion, judges stay faithful to the actual meaning of the constitutional provision, thereby conferring legitimacy upon those decisions.
The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
In Crawford v. Washington, 541 U.S. 36 (2004), writing for a 7-2 majority, Justice Scalia interpreted the Sixth Amendment’s confrontation clause— “to be confronted with the witnesses against him”— to mean what it says: “[T]he Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence, but about how reliability can best be determined.”
I like to think in his chamber, after writing his opinion, Scalia would channel his inner Ric Flair and exclaim…..