Ben Trachtenberg, Testimonial Is As Testimonial Does

66 Fla. L. Rev. 467 (2014) |

CROPtrachtenberg-bIn the decade since Crawford v. Washington declared “testimony” to be the touchstone of the Confrontation Clause, courts—from the humblest criminal trial court to the Supreme Court itself—have struggled with two problems. First, defining “testimonial” has proven difficult. Second, in certain cases, the results of defining “testimonial” as Crawford would seem to require have proven unappealing. Justice Antonin Scalia, the author of the majority opinion in Crawford and the most vocal cheerleader of its new doctrine, has consequently had trouble maintaining a majority of Justices for what would seem to be straightforward applications of the opinion. Professor Richard D. Friedman is troubled by this fact. Professor Trachtenberg is not.

The difficulties confronting Justice Scalia should not surprise observers of the so-called “originalist” project. A continuing—and, at least in Trachtenberg’s opinion, unsolvable—problem with a system of constitutional interpretation based on “original meaning” or “original understanding” is that reasonable persons can disagree about what originalist theory commands in nearly any particular case. The U.S. Constitution was written some time ago, and the contemporary meaning (or understanding, or whatever) of its key phrases is obscure to modern readers. The problem becomes especially acute when judges and law clerks with little to no training as historians practice originalism. And the acute problem becomes dire indeed when judges with strong ideological commitments in particular cases practice originalism. The recent decision in Shelby County v. Holder is among the most vivid illustrations of the phenomenon. A general critique of originalism is beyond the scope of this brief reply Essay; this Essay focuses on the particular problems with the Crawford doctrine.

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