Thomas Y. Davies, Univ. of Tennessee, has posted an article, What Did the Framers Know, and When Did They Know it? Fictional Originalism in Crawford v. Washington. It appeared in the Brooklyn Law Review. This is the second piece recently posted by Davies arguing that the current Court's originalism is "fictional." The other is here.
Here's today's abstract:
Justice Scalia made two originalist claims about the application of the Sixth Amendment Confrontation Clause to hearsay evidence in his opinion for the Court in Crawford v. Washington, 541 U.S. 36 (2004). He interpreted the framing-era content of the confrontation right to include a cross-examination rule under which testimonial hearsay statements were admissible only if the declarant was unavailable and the defendant had had a prior opportunity to cross-examine. However, he interpreted the scope of the framing-era right narrowly by asserting that the Framers were concerned only with regulating testimonial hearsay but did not intend to prohibit the admissibility of casual, nontestimonial hearsay. This article argues that neither of these claims was historically sound. The primary historical issue regarding the cross-examination rule involved the admissibility in a felony criminal trial of the written record of a post-arrest examination of a sworn witness taken by a justice of the peace under the Marian statutes. Justice Scalia recognized that such examinations were once admissible provided only that the witness had become genuinely unavailable (for example, had died prior to the trial), but asserted that a 1696 case had made cross-examination a condition for admissibility, and also asserted that three English cases decided in 1787, 1789, and 1791 had removed any doubt as to the cross-examination requirement. This article argues that the 1696 case dealt only with a misdemeanor and thus was inapplicable to the felony prosecutions to which the Marian statutes applied, and that none of the three later cases were published in London early enough to have come to the Framers' attention when the Bill of Rights was framed in 1789. Instead, it documents that the treatises and justice of the peace manuals available in framing-era America simply stated that Marian witness examinations were admissible if the witness had become genuinely unavailable. Thus, Crawford's cross-examination rule claim was prochronistic; although such a rule was adopted in England and America after the framing, it was not a part of the Framers' understanding. The salient feature of Justice Scalia's originalist claim that the scope of the confrontation right was limited to only testimonial but not nontestimonial hearsay is that he offered no actual historical evidence of any such distinction. Rather, as Chief Justice Rehnquist noted in his concurring opinion in Crawford, the historical rule was that hearsay is no evidence. Thus, the Framers had no occasion to consider the application of the confrontation right to unsworn hearsay, because they expected that such hearsay would not be admissible in any event. The article concludes by arguing that the fictional history in Crawford's rationale provides further evidence that the distance between framing-era and contemporary doctrine and institutions is so great that originalism is not a feasible approach to constitutional interpretation.