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.”

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.