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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, November 23, 2004 ::
    I've just come from teaching Maryland v. Craig in Criminal Procedure. GRRRGHGHRRRRGH. Mr. Chief Justice, conservatism in constitutional law is not all about locking people up. Justice O'Connor, your nanny pose in unbecoming.

    This case gives us one of Justice Scalia's best dissents, of course, made all the more piquant by being joined by Justices Brennan, Marshall, and Stevens. "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion" -- and it just gets better from there.

    Oh, that reminds me: Justices Brennan and Marshall (wherever you are) and Justice Stevens: doesn't this case give you any hesitation, any at all, about a "living Constitution" as you use the term? Maybe a clue about how a Constitution that "lives" under judicial management so as to "expand" rights can equally well contract and deny them?

    As it happens, NR published today a piece by Sen. John Cornyn about judicial nominations, in the course of which he points out Justice Scalia's under-discussed record as a defender of criminal defendants' rights, when those rights are plainly in the Constitution. The Senator writes, inter alia:
    Rights of the Accused: The judicial philosophy of Justices Scalia and Thomas has led to numerous decisions favoring criminal defendants, notwithstanding the contrary views of some of their colleagues. In Blakely and Apprendi, they authored or joined 5-4 majorities recognizing a robust right to jury trial under the Sixth Amendment. In Kyllo, Justice Thomas joined Justice Scalia's 5-4 majority opinion expanding Fourth Amendment protections against government searches based on new technologies. Justice Scalia's dissent in Maryland v. Craig, decided before Justice Thomas joined the Court, championed a broader Sixth Amendment right of criminal defendants to confront their accusers than that ultimately adopted by the Court.
    Fortunately, there is language in Scalia's recent opinion for the Court in Crawford v. Washington that offers us a time-bomb underneath Craig: "The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." And: "It is not enought to point out that most of the usual safeguards of the adversary process attend the [out-of-court testimonial] statement, when the single safeguard missing is the one the Confrontation Clause demands."

    That last line could have gone on to specify that it refers to the right to cross-examination, which after all is what was at issue in Crawford; but instead it's phrased so as to refer to the Confrontation Clause as such. Well done. Craig delendus est.

    :: David M. Wagner 10:15 PM [+] ::

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