Originalism Wounded! Justice Scalia Wanted For Questioning

Slate's blog on legal issues.
June 26 2008 11:44 AM

Originalism Wounded! Justice Scalia Wanted For Questioning

Yesterday, in Giles v. California , Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.

Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse.  The words of the Constitution matter, he said in Giles , and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."

Advertisement

Giles is hard to explain to the average citizen, but it's principled.

Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home.  As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.

More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.

 

 

TODAY IN SLATE

History

Slate Plus Early Read: The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Transparent Is the Fall’s Only Great New Show

The XX Factor

Rehtaeh Parsons Was the Most Famous Victim in Canada

Now, journalists can't even say her name.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

  News & Politics
History
Sept. 29 2014 11:45 PM The Self-Made Man The story of America’s most pliable, pernicious, irrepressible myth.
  Business
Moneybox
Sept. 29 2014 7:01 PM We May Never Know If Larry Ellison Flew a Fighter Jet Under the Golden Gate Bridge
  Life
Dear Prudence
Sept. 30 2014 6:00 AM Drive-By Bounty Prudie advises a woman whose boyfriend demands she flash truckers on the highway.
  Double X
Doublex
Sept. 29 2014 11:43 PM Lena Dunham, the Book More shtick than honesty in Not That Kind of Girl.
  Slate Plus
Slate Fare
Sept. 29 2014 8:45 AM Slate Isn’t Too Liberal, but … What readers said about the magazine’s bias and balance.
  Arts
Brow Beat
Sept. 29 2014 9:06 PM Paul Thomas Anderson’s Inherent Vice Looks Like a Comic Masterpiece
  Technology
Future Tense
Sept. 30 2014 7:36 AM Almost Humane What sci-fi can teach us about our treatment of prisoners of war.
  Health & Science
Bad Astronomy
Sept. 30 2014 7:30 AM What Lurks Beneath The Methane Lakes of Titan?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.