Joel Jacobsen

In  Crawford v. Washington, the Supreme Court in 2004 told us it had systematically violated the sixth amendment for the previous 213 years.  Everything it had previously required lower courts to do turned out to be not only wrong but ridiculous - we know, because Justice Scalia ridiculed it. 

Henceforth, Scalia's opinion declared, sixth amendment jurisprudence would conform to the vision of "the Framers," a phrase he used 12 times in Crawford.  It's never been very clear who "the Framers" are.  (See post 79.)  I sometimes suspect Scalia uses the term to talk about himself in the third person, in the style of certain professional athletes.  (See post 81 and post 192.) 

But probably Scalia, at least consciously, intends the term to refer to some or all of the many hundreds of men involved in drafting, approving, ratifying or agitating in favor of the Constitution during the 1787-1791 era.  His working assumption, apparently, is that all those men thought as one being, the way thousands of single-celled amoebas can, under certain circumstances, combine to form a single spore-producing entity.

Evidence of that assumption is Scalia's willingness to ascribe collective thoughts and feelings to an ill-defined group of men spread over a huge geographical area (1,277 miles from New Hampshire's Maynesborough Plantation to Georgia's Brunswick):

the Framers certainly would not have condoned ...

the Framers’ understanding ...

The Framers would be astounded to learn ...

One of the most telling signs of low-rent popular history is its reliance on the "must have" formulation, as in: "Peering into the ice-flecked waters, Washington must have sensed that the tides of history were moving as did the waters of the mighty Delaware."  Or: "Standing just 5'4", James Madison must have thrilled with his first glimpse of Dolley's decolletage." 

Scalia would belong in the same category with the laziest writers of pop history if he had told us what a given Founding Father "must have" thought about a famous 16th century show trial.  But Scalia tells us what a whole generation must have thought about it: "It is not plausible that the Framers’ only objection to [Sir Walter Ralegh's] trial was that Raleigh’s [sic] judges did not properly weigh these factors before sentencing him to death." 

(Note, too, the cheesy rhetorical trick of starting with the unproven assumption that the Framers had any "objection" at all to a political event of such antiquity, and then proceeding as if the only point of controversy is the precise nature of their collective objection.)  

Crawford is history of a very low order of intellectual sophistication.  Judged as hsitorical fiction, it demonstrates somewhat less intellectual rigor than the authors featured on this page.

But what's intellectually most dishonest about Crawford is something even more basic.  Scalia writes that: "The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant [in a state court trial] because it was elicited by 'neutral' government officers."  The bracketed phrase is key: Crawford involved a Washington state criminal trial, and the follow-up Davis case involved two more state prosecutions.

Whether or not any prominent American of 1791 would be "astounded to learn" that hearsay was admitted in a state trial is, perhaps, debatable, though I think a study of actual trial records would show that Scalia is not even wrong.  He's simply projecting his own 1950s-era legal education backwards.  (See post 179.)

But there is one thing that we can say with absolute certainty: the people who drafted and ratified the sixth amendment would have been astounded to learn that it was applied in state prosecutions at all. 

Richard Labunski's James Madison and the Struggle for the Bill of Rights is a fairly detailed account of the Virginia ratifying convention sugar-coated with the pseudo-drama implied by the title.  One of the central arguments of the Anti-Federalists against the Constitution, as Saul Cornell has catalogued, was the absence of a bill of rights, which they considered essential to restrict the power of the federal government, not the state governments.    Here's Patrick Henry:

The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained Within proper bounds.

And from the record of the same debate we hear from George Mason in paraphrase:

Mr. GEORGE MASON still thought that there ought to be some express declaration in the Constitution, asserting that rights not given to the general government were retained by the states. He apprehended that, unless this was done, many valuable and important rights would be concluded to be given up by implication. All governments were drawn from the people, though many were perverted to their oppression. The government of Virginia, he remarked, was drawn from the people; yet there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. He asked, Why should it not be so in this Constitution? Was it because we were more substantially represented in it than in the state government? If, in the state government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, he asked if it was not more necessary in this government, where they were but inadequately represented? He declared that artful sophistry and evasions could not satisfy him. He could see no clear distinction between rights relinquished by a positive grant, and lost by implication. Unless there were a bill of rights, implication might swallow up all our rights.

One purpose for enacting the Bill of Rights, ironically enough, was to protect the authority of the states themselves from federal encroachment.  Henry again:

It was expressly declared in our Confederation that every right was retained by the states, respectively, which was not given up to the government of the United States. But there is no such thing here. You, therefore, by a natural and unavoidable implication, give up your rights to the general government.

Your own example furnishes an argument against it. If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw -- government that has abandoned all its powers -- the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights -- without check, limitation, or control. And still you have checks and guards; still you keep barriers -- pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?

The argument of the Federalists (such as George Nicholas, quoted below) was that a bill of rights was unnecessary because the federal government had only the powers granted to it, which did not include power to encroach on the people's rights:

It is agreed upon by all that the people have all power. If they part with any of it, is it necessary to declare that they retain the rest? Liken it to any similar case. If I have one thousand acres of land, and I grant five hundred acres of it, must I declare that I retain the other five hundred? Do I grant the whole thousand acres, when I grant five hundred, unless I declare that the five hundred I do not give belong to me still? It is so in this case. After granting some powers, the rest must remain with the people.

I don't find a whole lot in the debate about whether jurors considering the guilt of a baby-raper or wife-beater should be allowed to learn truthful information of relevance to their determination, which is what Crawford is all about.  (See post 154.)

The sixth amendment was never intended by its framers to restrict the state prosecution of criminals.  Scalia's historical analysis begins with absurdity and continues with dishonesty, for the sixth amendment was intended to prevent exactly the sort of federal takeover of state functions that Crawford represents.