The Limits of Textualism in Interpreting the Confrontation Clause

In evaluating textualism's role in interpreting the Bill of Rights, this Essay will focus on the criminal procedure provisions, which often get overlooked because they are not taught in most constitutional law courses, and primarily on the Confrontation Clause of the Sixth Amendment. The argument here is two cheers for textualism. To interpret the Sixth Amendment, lawyers and judges have increasingly relied on textualism, as they should. Indeed, it should even be the principal method of interpretation. But the excesses that have turned textualism into the only method with all the answers are somewhat troubling. This is an area in which we see disagreement among the Republican appointees on the Supreme Court, with Justice Scalia taking the most textualist, most pro-defendant position; (1) Justice Kennedy, Chief Justice Roberts, and Justice Alito saying, "No, you've gone too far;" (2) and, oddly, Justice Thomas as one of two swing Justices in the area. (3) All of this goes to show how little we get when we try to squeeze the last possible drops out of textualism. In the Sixth Amendment context, textualism helps judges and lawyers get away from raw policy analysis and guides their inquiry toward whether or not a defendant has confronted a witness. We do, however, tend to confuse textualism with originalism, which has so many broad and ambiguous meanings that it sometimes smuggles in the Framers' subjective intent. We further confuse textualism with formalism, even though the text often does not direct us to a formalistic bright-line rule, much as Justice Scalia sometimes might like it to. To illustrate this point, this Essay will start with the text of the Sixth Amendment. The relevant clause guarantees: "[T]he accused shall enjoy the right ... to be confronted with the witnesses against him...." (4) For several decades, beginning with Ohio v. Roberts, (5) the Supreme Court interpreted the clause as establishing only a preference for face-to-face confrontation. Because that preference was not absolute, courts developed multi-factor balancing tests for deciding whether evidence was reliable. (6) Clearly, the text does not direct courts to balance any factors. One can understand Justice Scalia's ire, because the Framers could not have anticipated that the Sixth Amendment would be interpreted as a mere preference that can be outweighed by any number of considerations. (7) Thus, in 2004, seven members of the Court swept that rule away in Crawford v. Washington (8) and said: "No. The text says the defendant shall be confronted with the witnesses against him. That's not a preference; that's a rule." (9) Accordingly, judges must look at what a witness is, at what confrontation means, and at the historical incidents against which this rule was designed to guard. Note first that the text by itself does not provide the answer. It has to be supplemented with an originalist context. The text, read alone, could mean any one of three things. One plausible textualist reading is that a witness means only a person who actually testifies in court. This was the position of the great evidence scholar John Henry Wigmore and of Justice John Marshall Harlan, the younger. (10) The Court in Crawford ultimately rejected this reading, however, but not because it fails to square with the text. (11) Indeed, it may well be the strictest reading of the text, but it does not square with the historical backdrop against which the text was adopted--namely, a series of treason trials in the 16th and early 17th centuries. The most notable of these was the trial of Sir Walter Raleigh, in which he was prosecuted based on unsworn, out-of-court statements that were extracted with thumb screws and the rack. (12) Raleigh insisted: "I'm being tried by the Spanish Inquisition. I want to bring this witness into court because he'll recant," (13) but his request was denied and he was eventually put to death. (14) His conviction was widely viewed as an injustice, and all contemporary discussions of the right of confrontation referred to this incident. …