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Gary Lawson: Confronting Crawford
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Confronting Crawford: Justice Scalia, the Judicial Method, and the Limits of Originalism (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract: 

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When Justice Scalia was appointed to the Court in 1986, a very crude version of the “attitudinal model” dominated both academic and popular views about how Supreme Court justices were likely to decide cases. Almost everyone expected Justice Scalia to be a Warren Burger clone who would reflexively vote to lock up guilty criminals. When he instead decided some cases based on meaning and methodology rather than results, the legal community had difficulty processing the point. If that seems strange to modern eyes, so that a 2004 decision such as Crawford does not appear inexplicable, it is at least partly because of Justice Scalia’s influence in the ensuing decades, which has helped moved methodology to the forefront of jurisprudence. Third, Crawford is an outstanding exemplar of Justice Scalia’s originalist methodology in both action and inaction. Actively, the textual, structural, historical, and purposive moves in Crawford exemplify the “fair reading” interpretative methodology that Justice Scalia spent much of his life advancing. On the other hand, that methodology was applied to the “wrong” text, because Crawford (and all subsequent Confrontation Clause cases) involved state rather than federal prosecutions, to which the Sixth Amendment literally does not apply unless the most dramatic form of text-for-text incorporation is the correct original meaning of the Fourteenth Amendment. Crawford thus focuses attention on how originalism as a method of interpretation does not always easily translate into originalism as a form of adjudication.

An important, thought provoking, not-to-be-missed essay for those interested in originalist methodology.

On the third point, as briefly discussed in my survey of Justice Scalia's originalist methodology (Part II.C), I think the problem is that Scalia never really resolved in his own mind (a) whether he thought the original meaning of the Fourteenth Amendment incorporated the Bill of Rights or whether incorporation was something he accepted merely as a matter of stare decisis; and (b) whether, regardless of the answer to (a), incorporation meant automatic "text-for-text incorporation" (as Professor Lawson calls it) or whether it meant incorporation of the 1868 understanding of the Bill of Rights provisions.  My reading is that Scalia's opinions are inconsistent on both points.