“Incorporation,” Originalism, and the Confrontation Clause:

I have no strong feelings, or really any feelings whatsoever, about the right of a criminal defendant to confront the witnesses against him, protected by the Sixth Amendment. So I can examine recent Confrontation Clause jurisprudence with an unjaundiced eye, and conclude that it makes no sense.

The Supreme Court, led by Justice Scalia, created a revolution in Confrontation Clause jurisprudence in the 2004 Crawford case. Before Crawford, the Court for many years had held that testimony admitted under any “firmly rooted” hearsay exception satisfies the Clause.

Scholarly work, especially by Prof. Richard Friedman of the University of Michigan Law School, showed that as a matter of original meaning, this was an incorrect interpretation of the Confrontation Clause, that the right to confront witnesses went beyond protecting a defendant from unreliable hearsay. The historical research persuaded Scalia, and Scalia persuaded his colleagues. This past term, the Court held, for the first time, that forensic reports are subject to the Confrontation Clause, threatening a certain level of havoc in state criminal justice systems.

Here’s the rub: Crawford is, as far as I can tell, correct as a matter of original understanding of the Sixth Amendment, and therefore is properly applied to federal prosecutions. The problem is that Crawford, and most of the major subsequent Confrontation Clause cases, are state cases, arising under the Fourteenth Amendment.

The Fourteenth Amendment’s Due Process Clause is said to “incorporate” the Sixth Amendment’s Confrontation Clause. But, as a logical matter, the right incorporated by the 14th Amendment in 1868 is the understanding of the Confrontation right as of 1868, not the understanding as of 1791. And my understanding is that the experts (I am not one) agree that by 1868 the original 1791 understanding of the Confrontation Clause had been lost, and that the Confrontation right was thought to be coextensive with protections against hearsay–precisely the position Scalia rejected on originalist grounds in Crawford!

Thus, Crawford exposes what I see as a major flaw in Scalia’s originalist methodology. When a right protected by the Bill of Rights is applied to the states via the 14th Amendment, it has to be the 1868 understanding of that right, not the 1791 understanding, that governs. (This likely has implications for other rights as well, including freedom of expression, the right to bear arms, and the right to not have private property taken for public use without just compensation.) Not only has Scalia not applied this insight, I don’t think (correct me if I’m wrong, please) there’s any evidence that it’s ever occurred to him.

I’m not a hard-core originalist, but to the extent original meaning is supposed to govern Supreme Court decisions, Crawford, and its state-level progeny, are wrongly decided.