Originalism is sometimes criticized as merely a means to justify conservative results. (1) And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term's decision in District of Columbia v. Heller, (2) interpreting the Second Amendment as including an individual right to bear arms, is a recent example.
When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the Court's recent reconception of the Sixth Amendment right to confrontation. In both of these areas, the Court has divided sharply across ideological lines. Specifically, in both lines of cases, the Court acted primarily through a core five-member majority: Justices Scalia, Thomas, Stevens, Ginsburg, and Souter. On the other hand, the dissenters initially were Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Breyer. Chief Justice Roberts and Justice Alito have stepped quite comfortably into the shoes of Chief Justice Rehnquist and Justice O'Connor. (3)
This debate requires thought. One cannot simply say, "I am conservative, so I think x should win the case." Instead, one must ask whether one really believes in originalism, and, if so, what an originalist approach to the Constitution in general, and to the Sixth Amendment in particular, really entails.
To this end, this Essay will advance two brief points. First, it will argue that the Court recently has used originalism to decide both easy cases and hard cases arising under the Sixth Amendment. The easy cases involve modern situations closely paralleling ones with which the Framers were familiar; the hard ones involve modern phenomena and thus require more extrapolation. Second, this Essay will contend that the Court is right to use originalism as an anchor even in the hard cases. Without this anchor, the Court has nothing but its policy preferences to guide it, and the very purpose of the Sixth Amendment is to prevent cases from being decided solely on those terms.
I. THE RIGHT TO JURY TRIAL
The Supreme Court's internal debate about the scope of the right to jury trial has been going on now for a little over a decade. The debate arose primarily because of a modern innovation by state legislatures and Congress. Historically, when a legislature wanted to punish more severely a particular manner of committing a crime, it simply created an aggravated version of the crime, under which the prosecution would charge and prove the aggravating factor just as any other element of a criminal statute. (4) The prosecution, for example, had to prove that the defendant used a gun in order to convict him of armed robbery instead of robbery. The prosecution had to prove serious bodily injury to convict the defendant of first degree assault instead of a lesser degree of assault. And so on.
Juries traditionally passed judgment on allegations that exposed defendants to heightened punishment not only--or even primarily--because juries were necessarily better factfinders than judges. Instead, the common law assigned this duty to juries so that they could engage in what is most accurately described as a limited nullification power--though the Supreme Court has shied away from this term. (5) At the time of the founding, most felonies were punishable by death. Juries recognized that if they convicted defendants of certain crimes, they would subject the defendants to the death penalty. But juries traditionally had, and often exercised, the power to return verdicts on lesser offenses when the jurors thought that a defendant's wrongdoing was not severe enough to warrant the death penalty. Juries thus served as an institution of public consciousness, interposed between the prosecution and the judge, that guaranteed "the people's. …