For reasons of history and disposition, self-identified conservatives are usually self-described “law and order” types. That is all well and good. I would need to hold a seminar to convince my fellow conservatives why they should reconsider their reflexive faith in police authority and, instead, harness their proper suspicion of government power in the context in which it matters most: between the citizen and the representative of the State who possesses monopolistic power to use force and detain.
But I am not here to change minds on that issue. Rather, I am here to demonstrate that originalism, as applied by the late Supreme Court Justice Antonin Scalia, has done more in the last two decades to secure the constitutional rights of the accused than any well-meaning progressive activists and bipartisan reformers. Originalism, generally associated with conservatism, compels its adherents to interpret the Constitution according to what its words meant at the time they were adopted. Like any human endeavor, it is an imperfect method—but, as Justice Scalia observed, “My burden is not to show that originalism is perfect, but that it beats the other alternatives—and that, believe me, is not difficult.” Originalist judges ascertain constitutional meaning from a host of sources, from consensus historical background materials to dictionaries and grammar books issued at the time of adoption. By analyzing the text in this fashion, judges stay faithful to the actual meaning of the constitutional provision, thereby conferring legitimacy upon those decisions.
This philosophy lends itself naturally to defending the rights of the accused. A criminal defense lawyer defends individuals (and sometimes companies) whom the State has accused of committing crimes. As the American Bar Association put it, “Counsel for the accused is an essential component of the administration of criminal justice” who serves “as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation.” To that end, as Supreme Court Justice Byron White explained in 1967: “Defense counsel need present nothing, even if he knows what the truth is. … If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worse possible light, regardless of what he thinks or knows to be the truth.”
The “law and order” types are rarely enthusiastic about this part of our work … until, of course, they find themselves on the wrong end of an indictment—which happens, and not infrequently. We defense lawyers, by contrast, not only happily engage in these tactics, but have an ethical obligation to do so. The conscientious criminal defense attorney subscribes to a self-evident syllogism: By vigorously defending the rights of all criminal defendants, the attorney ensures the integrity of the justice system, the preservation of guaranteed constitutional rights, the vindication of the rule of law, and the protection of the innocent from conviction. These weighty concerns operate in courtrooms throughout the United States and give life to Judge Learned Hand’s observation that “the spirit of liberty is the spirit which is not too sure that it is right.”
To ensure that innocents are protected from the crushing power of the State, a criminal defense attorney must put the prosecution to its burden of proving each and every element of the offense, ensure that the police acted in conformity with the law, and make sure that the State’s evidence is reliable and truthful, which often includes a defense lawyer questioning a witness’s credibility and recollection of the events giving rise to the witness’s testimony. This is the essence of the adversarial process—the genius of our justice system.
Justice Scalia understood this well.
Justice Scalia, Originalism, and the Accused: When in the majority, the late justice left us with significant decisions that favored criminal defendants. When in dissent, he inspired defense lawyers with his vivid and brilliant prose extoling the Founders’ skepticism of government authority. And he was aware of this, as well: “I ought to be the darling of the criminal defense bar. I have defended criminal defendants’ rights— because they’re there in the original Constitution— to a greater degree than most judges have,” the justice said. His constitutional catalogue is too vast to address, so I list four of his greatest Sixth and Fourth Amendment hits, respectively.
The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
In Crawford v. Washington, 541 U.S. 36 (2004), writing for the majority, Justice Scalia interpreted the Sixth Amendment’s confrontation clause— “to be confronted with the witnesses against him”— to mean what it says: “[T]he Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.”
Prior to Crawford, prosecutors were permitted to offer into evidence against criminal defendants untested adversarial testimony provided that the witness who gave the testimony was unavailable for trial and the out-of-court (hearsay) statement fell within a firmly rooted exception and bore the indicia of reliability or trustworthiness. Needless to say, this gave the State an unfair advantage at trial because, as Justice John Paul Stevens opined, “cross examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate.” Indeed, “the lack of an opportunity to cross examine the absent declarant has been the principal justification for the Anglo-American tradition of excluding hearsay statements.” If the accused does not have an opportunity to undermine the credibility of his accuser, he is rendered virtually defenseless to those accusations. Through originalist means, Justice Scalia restored the proper meaning of the Confrontation Clause because “[d]ispending with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”
Likewise, in Blakely v. Washington, 542 U.S. 296 (2004), Justice Scalia, in the majority and in reliance upon a 2000 decision, imbued further substance into the Sixth Amendment’s textual guarantee that a criminal defendant shall have an impartial jury decide his fate. As a corollary to that guarantee, he reasoned, when a convicted defendant is sentenced beyond the standard range for a crime, the facts that enabled increased punishment must, if not admitted to by the defendant, be found by a jury beyond a reasonable doubt, not a judge. With originalist precision, Justice Scalia concluded: “The Framers would not have thought it too much to demand that, before depriving a man of three years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours . . . rather than a lone employee of the State.”
In practice, prior to Blakely, when a defendant was convicted at trial or pleaded to the indictment, the prosecutor would apprise the judge at sentencing of so-called relevant facts— facts that were unnecessary to prove the underlying offense that resulted in conviction but that served to increase the defendant’s sentence. Those facts, however, were not subjected to adversarial testing before a jury. Blakely corrected that deprivation.
Although plea-bargaining is the predominant setting in modern criminal practice, the lifeblood of criminal defense work remains the jury trial. An authority on liberty no less than Thomas Jefferson once wrote to someone equally concerned with liberty’s promise, Thomas Paine, that, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Originalist jurisprudence ensures the jury remain so.
The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A favorite of mine, the Fourth Amendment regulates interactions between citizens and police. Here, too, Justice Scalia championed protections for the accused, from requiring law enforcement to obtain a search warrant before applying thermal-imaging technology to invade a man’s home to condemning the assault upon dignity entailed by police officers patting down citizens upon less than probable cause. Two cases, in particular, illuminate originalism’s presumption in favor of the accused.
In United States v. Jones, 565 U.S. 400 (2012), writing for the Court, Justice Scalia analyzed whether the FBI’s placing a GPS tracking device on a suspected drug trafficker’s automobile without a judicial warrant constituted a “search” within the meaning of the Fourth Amendment. Answering in the affirmative, Justice Scalia wrote: “[I]t is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” In originalist fashion, the justice examined English common law to bolster the Court’s decision, observing that “ Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a ‘case we have described as a ‘monument of English freedom undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ with regard to search and seizure.” The holding and rationale in Jones—animated by 18th-century English jurisprudence, no less—stands for the proposition that originalism robustly protects the rights of the accused despite rapid technological advancements that erode privacy in general while enhancing the State’s ability to inject itself into our personal affairs with minimal effort or judicial oversight. By examining the Amendment’s text and meaning at the time of adoption, Justice Scalia easily found that “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”
Unlike in Jones, in Maryland v. King, 569 U.S. 435 (2013), Justice Scalia was unable to prevail upon his brethren that it was constitutional error to permit the State to systematically collect DNA samples, without a warrant, from anyone arrested—not convicted—for a violent crime. Writing for the majority, Justice Anthony Kennedy reasoned that DNA collection, via cheek swabs, pursuant to an arrest upon probable cause, constituted a minimal physical intrusion upon the accused akin to stationhouse fingerprinting and photographing and “no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect.” By this logic, the Court held that such an intrusion is reasonable under the Fourth Amendment. Justice Scalia thought otherwise.
In dissent, the originalist justice, as he was wont to do, took the majority to the woodshed for its cavalier attitude toward the State’s collection of genetic material. He observed that, “[w]henever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.” He analogized such undifferentiated searches to British “general warrants” that, “[a]t the time of the Founding, Americans despised,” for they were “not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application.” As to Justice Kennedy’s photograph analogy, Justice Scalia reasoned that taking a person’s photograph “is not a Fourth Amendment search at all. It does not involve physical intrusion onto the person.” With regard to fingerprinting, “Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).”
With constitutionalist verve, Justice Scalia delivered the coup de grâce:
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
As the originalism revolution that Justice Scalia incited molds and shapes generations of law students and lawyers, it will likely come to pass that King’s “incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.” Indeed, Justice Elena Kagan wrote, in memoriam, “[Justice Scalia’s] articulation of textualist and originalist principles, communicated in that distinctive splendid prose, transformed our legal culture: It changed the way almost all judges (and so almost all lawyers) think and talk about the law. . . . Does anyone now decline to focus first, in reading a statute, on its text in context? Does anyone now ignore the Founders’ commitments when addressing constitutional meaning[?]” Until this incursion is repudiated, we criminal defense attorneys will continue to hold the line in courts throughout America.
Non-originalism: A word about judicial activism (or what is fashionably called “living constitutionalism”), the antithesis of originalism. Non-originalist Supreme Court justices have done much to advance the rights of the accused—primarily in the 1960s. The Warren Court revolutionized criminal procedure in meaningful ways. In Mapp v. Ohio, 367 U.S. 643 (1961), the Court gave us the exclusionary rule, which holds that evidence the police obtained in violation of the accused’s Fourth Amendment rights is inadmissible at trial. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that, prior to custodial interrogation, the police must inform a criminal suspect of his constitutional right to an attorney and to remain silent. And, in the case that assures all previous and subsequent cases benefiting the accused have force, Gideon v. Wainwright, 372 U.S. 335 (1963), the Court announced that the Sixth Amendment requires the states to appoint a lawyer to represent indigent defendants in criminal cases. Justice Scalia was no fan of the exclusionary rule or Miranda warnings and was not of the opinion that the State “had to pay for your counsel.” As an originalist, I understand his objections. As a practicing criminal defense attorney, however, I find these constitutional rules indispensible. To those unable to reconcile the contradiction between my judicial philosophy and my professional obligation, I offer Ralph Waldo Emerson’s “Self-Reliance,” namely, “A foolish consistency is the hobgoblin of little minds.” Or, as Justice Scalia was fond of saying about Bush v. Gore, 531 U.S. 98 (2000), “Get over it.”
That is not the end of the judicial activist narrative, however. While the Warren Court expanded the protections of the accused in necessary and healthy ways—to say nothing of its most lasting, consequential, and venerable achievement in Brown v. Board of Education, 347 U.S. 483 (1954)—it also had excesses. Chief Justice Earl Warren’s Court gave America “the right to privacy,” as announced in Griswold v. Connecticut, 381 U.S. 479 (1965), which, apparently, emanates from the penumbras of the Bill of Rights. In The Tempting of America: The Political Seduction of the Law, the late legal scholar and former United States Circuit Court judge Robert Bork called the right to privacy a “constitutional time bomb” because it did not answer its obvious question: “Privacy to do what?” The Griswold decision helped create the judicial framework for Roe v. Wade, 410 U.S. 113 (1973), in which the Supreme Court held that women have a constitutional right to procure an abortion. Roe and its progeny have been a subject of national controversy ever since, primarily because the Court removed such a profound moral question from democratic discussion and decision. Even Justice Ruth Bader Ginsburg wrote in 1985, when she was then a United States Circuit Court judge, that Roe was a “[h]eavy-handed judicial intervention [and] was difficult to justify and appears to have provoked, not resolved, conflict.”
As the Supreme Court became a political prize, it instigated a schism between right and left that led to the morally repugnant character assassination of Judge Bork in 1987, when President Ronald Reagan nominated him to the Court, and culminated in the “mini-Constitutional convention” each time the president, from either party, sends a Supreme Court nominee to the Senate for confirmation. Responsible conservatives and liberals alike agree that these “confirmation wars” are more harmful than beneficial to republican government. Faithfully applied, originalism ensures that the Supreme Court remains in its proper, limited place in our constitutional order and leaves the thorny, controversial questions of culture and morality to the democratic process, where they belong.
And so while a comprehensive originalism would keep the Court honest, so, too, it would preserve and, where necessary, expand the rights of the accused. In contemporary America, the only major bipartisan issue in Congress is criminal justice reform. Despite this promising development , little has been done on this front at the federal level. Unlike legislation, the Constitution is not subject to electoral winds. In the last two decades, originalism, as applied by Justice Scalia, has done the heavy lifting of protecting the rights of the accused. My colleagues at the criminal defense bar who have been reflexively critical of Justice Scalia’s life’s work would do well to reexamine their views in light of his full legacy.