Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation.posted by dios at 2:16 PM on March 14, 2007 [1 favorite]
The record of history refutes the proposition that the evolving Constitution will invariably enlarge individual rights. The most obvious refutation is the modern Court's limitations on the constitutional protections afforded property. The provision prohibiting the impairment of the obligation of contracts, for example, has been gutted. See Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934). I am sure that We the People agree with that development; we value property rights less than the Founders did. So also, we value the right to bear arms less than the Founders (who thought the right to self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generations might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may like the abridgment of property rights and like the elimination of the right to bear arms, but let us not pretend these are not reduction of rights.See also the opinion in Maryland v. Craig wherein the majority decided that in cases involving sexual abuse of a child, the accused was only allowed to watch the testimony of the victim through closed-circuit tv because of fear of the psychological impact upon the child of testifying in front of the accused. As such, the accused did not have the rights guaranteed by the Confrontation clause to confront his accuser when the accuser testifies. There were sex offenses involving children in 1791, so this is not a new thing. The only change is our sensitivity to 'psychic trauma.' We probably like the decision of the Court, but we cannot pretend that the decision did not eliminate a liberty interest protected by the Constitution.
According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an in dispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial." The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for"face-to-face" confrontation but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this en- tire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for "face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "`right to meet face to face all those who appear and give evidence at trial.'" Coy v. Iowa, 487 U.S. 1012, 1016 (1988), quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J. concurring).That is from the great "liberal" justices Brennan, Marshall, and Stevens, who joined that opinion written by one who is often called a "conservative."
....
In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confrontation, because the Court has no authority to question it. It is not within our charge to speculate that, "where face-to-face confrontation causes significant emotional distress in a child witness," confrontation might "in fact disserve the Confrontation Clause's truth-seeking goal." If so, that is a defect in the Constitution which should be amended by the procedures provided for such an eventuality, but cannot be corrected by judicial pronouncement that it is archaic, contrary to "widespread belief" and thus null and void. For good or bad, the Sixth Amendment requires confrontation, and we are not at liberty to ignore it. To quote the document one last time (for it plainly says all that need be said): "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him" (emphasis added).
« Older When flowers won't cut it.... | Good and bad hair.... Newer »
This thread has been archived and is closed to new comments