In response to: The Legal Turn
At times members of the Supreme Court, including Justice Scalia, have said the words of the Constitution should be read in ordinary language. But recent majority opinions in the Confrontation Clause, like Crawford v. Washington and Giles v. California, written by none other than Justice Scalia, are more consistent with the view expressed by Mike Rappaport and me that the Constitution is written in the language of the law. That language includes ordinary language but also terms that have a distinctly legal meaning as well as legal interpretive rules.
The Confrontation Clause provides that “in criminal prosecutions, the accused shall have the right . . . to be confronted with witnesses against him.” In Crawford the state wanted to introduce a tape recorded statement made by the defendant’s wife to the police. The statement appeared reliable but the defendant had not been afforded the opportunity to cross examine the witness. The Court in an opinion by Justice Antonin Scalia recognized that the question of whether the clause applies only to witnesses at trial is not answered by the “Constitution’s text . . . alone.” Justice Scalia stated that “One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, those whose statements are offered at trial or something in-between.”
To resolve this uncertainty, Justice Scalia looked at the legal meaning of the constitutional provision.
Fans of the late Justice will treasure a new collection of his speeches.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.