I feel like originalism could be a way to get defendants back some of the rights that Nesson thinks have been taken from them, but then what?The constitution was written by rich white men who owned slaves, so realistically, how far can we expect it to go? Is that what you mean by constricting?
If the question is should we ONLY rely on defendants' rights reform via statute or amendment, I think that's wrong. Those avenues can certainly help, but the Constitution was written at a time when the Founders were inherently suspect of state power. Thus, to the extent defendants' rights have been distorted, originalism can help get us back there
I think something important to talk about on this is the question of how the confrontation clause was treated prior to the controversy. Scalia in Crawford presents his approach as a sort of returning to the prior treatment of it- was the prior use of the confrontation clause predominantly as an admissibility rule? It seems like the answer to that is no in this case, but I don't know enough to say.
Abydos, pretty much what I meant is that the constitution is not going to be a frame to obtain rights for a lot of groups given its context. It wasn't designed to give rights to minorities and I think that makes it not a perfectvehicle for that
if we are evolving in our understanding of criminal defendant's rights then all reform should be considered. Original understanding could not account for the technological advances used in examining evidence or creating testimony by recording, telephone calls etc.
So if the confrontation clause were acting as an admissibility rule, would it's proper usage be to prevent cases with insufficient evidence from reaching the jury and be thrown out by judges? is that the goal?
Maybe I'm completely off base here but this is how I see it. Whether the testimonial or not, per the confrontation clause, anyone incriminating the defendant should testify in court in front of the defendant. if the 6th am was a direct reaction to Raleigh , then it is irrelevant if the statement made was testimonial or not because it incriminates the defendant nevertheless. I think Scalia carved out for an exception for non-testimonial statements and that is one of the problems.
reform by statute or constitutional amendment is better than using any interpretive framework on the constitution but given the current makeup of the judiciary, we should look into ways to use the originalist framework to expand rights
I am deeply skeptical that there is even an original meaning to be found in any text, which is the fatal flaw of originalism. This case and others like it, specifially those cases dealing with reasonableness and the warrant requirement show that there are often two equally compelling interpretations of the plain meaning of the text even under an originalist framework. Different strategies, canons of interpretations, and which historical evidence is relied upon most get you to different answers even with the originalist mindset. And ultimately, values, ideology and psychology are what determines which of those things judges choose to emphasize more or less. Thus, it seems doomed from the start.
I think originalism has its limits for sure (how would it apply to technological changes today?), but that doesn't mean it doesn't have its uses either. It should only be one part of reform and of an interpretive strategy, but it should be one part nonetheless