In Joseph Ellis’ view, it’s just fine for us to love the Founders, but not for anyone to understand them in ways that might derail the march of progress.
At times members of the Supreme Court, including Justice Scalia, have said the words of the Constitution should be read in ordinary language. But recent majority opinions in the Confrontation Clause, like Crawford v. Washington and Giles v. California, written by none other than Justice Scalia, are more consistent with the view expressed by Mike Rappaport and me that the Constitution is written in the language of the law. That language includes ordinary language but also terms that have a distinctly legal meaning as well as legal interpretive rules.
The Confrontation Clause provides that “in criminal prosecutions, the accused shall have the right . . . to be confronted with witnesses against him.” In Crawford the state wanted to introduce a tape recorded statement made by the defendant’s wife to the police. The statement appeared reliable but the defendant had not been afforded the opportunity to cross examine the witness. The Court in an opinion by Justice Antonin Scalia recognized that the question of whether the clause applies only to witnesses at trial is not answered by the “Constitution’s text . . . alone.” Justice Scalia stated that “One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, those whose statements are offered at trial or something in-between.”
To resolve this uncertainty, Justice Scalia looked at the legal meaning of the constitutional provision.Scalia argued that the “founding generation’s immediate source of “the concept” of the “right to confront one’s accusers” was the common law. The common law treated witnesses who testified outside the scope of trial as subject to the right of confrontation. Indeed, the civil law abuses at which the common law right of confrontation was aimed occurred largely outside the context of trial. Thus, if the right to confront witnesses were understood in ordinary language, the meaning of witness would be at best ambiguous. But once its common law or legal meaning was considered, its meaning became clear.
The content of confrontation rights is also vague if the term confrontation is viewed in ordinary language. But the Court instead understood the term from the perspective of the language of the law by considering its common law meaning to determine the precise content of the right. The Court stated: “As the English authorities, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations. The numerous early state decisions applying the same test confirm that these principles were received as part of the common law in this country.” Once again the language of the law gives clear meaning to a term that was vague if treated as written in ordinary language.
In Giles the Court defined the circumstances in which the right of confrontation can be forfeited. In that case the defendant had killed the witness whose testimony was to be introduced without the benefit of cross examination. The Court again looked at the common law and concluded that defendant forfeited his right only if he made the witness unavailable with the design of preventing the witnesses’ testimony. The Court was again clear that it was bound by the legal meaning , not the ordinary meaning of the language: The Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.”
Thus, the originalist jurisprudence of the Confrontation Clause cannot be accounted for by the ordinary language view. It also illustrates several important propositions about the language of the law. The Court can choose the language of the law over the ordinary language when the terms at issue appear ambiguous as between ordinary language and legal language. The Crawford Court’s treatment of “witnesses” in the language of the law is an example of such a reading. The Court can also read the language of the law to find a meaning not present at all in ordinary language. Giles’s decision about when the right of confrontation is forfeited finds a meaning in the Clause not present in ordinary language, but only in the language of the law. More generally, the jurisprudence of the Confrontation Clause shows how the language of the law can condense information in just a few words: it is both a shorthand that allows for concision and a reference to prior rules that allows for precision
It is true that Gary Lawson has suggested that Crawford and Giles may be wrong to focus on the understanding of the Confrontation Clause at the time of the original Constitution. Given that Crawford and Giles were state cases, the relevant question is the meaning of Confrontation Clause as incorporated by the Fourteenth Amendment. But even if Professor Lawson is correct, these cases show how the Confrontation Clause as applied to the federal government requires a legal reading of the Constitution. And it seems unlikely that the incorporated meaning will be able to avoid considerations of legal meaning even if the meaning sought will depend on legal understandings at the time of the enactment of the Fourteenth Amendment.