Until recently, some of your 6^th Amendment rights were not taken seriously.  Conservatives made a mess of the law.  Originalists fixed it.

With this entry, I’m going to make you an expert on the 6^th Amendment while making an enemy out of the ghost of William Rehnquist and Warren Berger.  And the way I’m going to do it is by using it to explain and establish originalism.

Definitions first: Originalism is a method of judging and interpreting law that requires us to apply traditional meanings of legal language to modern disputes.  The idea is to discipline judges and litigants by forcing them to closely examine the published text, and to not pretend as though the meaning of the ratified words has “evolved” over time.  In other words, what “the freedom of speech” meant in 1791 when the Bill of Rights was ratified, it still means today.  An originalist must apply that old, unchanged meaning to modern cases.

Don’t worry, your text messages, selfies, and bitmojis are safe.  Rights are like water.  The distribution system for them may evolve, but their essence stays the same.  Originalism adapts to new things that didn’t exist before, but things that did exist before remain the same.  And the Constitution is more than simply a Bill of Rights.

The original Constitution did not have a Bill of Rights.  The Founders mostly believed that they had created such an enduring political structure that they didn’t need one.^[1]  The Bill of Rights was an afterthought.  And the Bill itself is a strange list: religion, assembly, speech, guns, private property protections, procedure for the criminal, state reservations; why these rights and not others?  It’s because the Founders identified those items as primary targets of a tyrant.

In other words, the Bill of Rights is not just law in and of itself, but a statement of definitions, values, and purposes that the Constitution seeks to protect and advance.

So let’s talk about the 6^th Amendment.

There’s a lot in this thing, none of it is obvious, and all of it comes from the English.  This entry will focus on just two mini-rights: jury and confrontation.

Three cases, three originalists, three reversals of prior precedents; in all three, the prior precedents were authored not by inventive liberals, but mostly by “law-&-order” conservatives.

The Unanimous Jury

If you have not spent your life in Oregon or Louisiana, you may not have heard of a non-unanimous jury.  But until 2019, if you were charged with a crime in either of those states, you could be convicted by a roll call of 10-2.  Imagine learning you’ve been sentenced to life without parole even though two of your peers on that jury thought there was reasonable doubt in your case, and the other ten angry men couldn’t convince them otherwise.

A jury is a funny paradox: often characterized as the purest form of modern democracy, yet no democracy has ever required unanimity.  When a jury goes into its deliberation room, no one knows what its members are doing, and everyone waits with bated breath for them to emerge like white smoke from the Vatican.  Yet it seems just as foolish as it does brilliant to fathom the idea that the facts, and even the law, will be decided by twelve regular, unsophisticated people.  Ever met a regular person?  Seen one drive?  That’s a lot of power and a lot of faith!

I have argued before that judicial unanimity is overrated.  The law is complicated and judges actually have to show their work.  Jurors do not.  They come back with a thumbs up or down, or in civil cases – a number, and rarely do we learn what determined how they reached it.  Since unanimity often speaks for itself, that doesn’t bother us.  But if a jury is allowed to convict you despite one sixth of its membership refusing to agree, it very well might.

So in that strange, somewhat circular way, to convict the accused criminal, a jury must be unanimous in order to justify the faith that we place in a unanimous jury in the first place.  In other words, that’s just what a jury is.

This has been understood since at least 14^th Century England, and the colonists brought that understanding of law with them to the Americas.

But in 1972, in a pair of cases called Apodaca v. Oregon and Johnson v. Louisiana, four Supreme Court justices – generally considered “conservative” in their day – decided suddenly that jury unanimity was outdated and no longer served an important “function” in “contemporary society.”  According to them, there was little to be improved by forcing all 12 members to convict rather than a simple 10, and that hung juries were annoying.  The fifth justice – Lewis Powell, also a conservative – agreed with that state-flexible judgment, even as he noted that it was out of step with history.

If you ever read a judge speculating over a feature of “contemporary society,” you can safely conclude that that person is not an originalist.  Empty philosophizing is not law.  So don’t get to thinking that liberals are the only ones prone to abusing the Constitution.  Conservatives do it too.

But those who follow originalism do not.  And in Ramos v. Louisiana, the 2019 Supreme Court, in an opinion by Neil Gorsuch, fixed that.  When the 6^th Amendment uses the word “jury,” the word unanimous is implied.

Jury Sentencing: Crime and Punishment

The best way to kill someone is by accident.  Just ask Alec Baldwin.

Your intent is important when you do something, and crimes are defined by the law accordingly.  If you splatter a pedestrian because you were driving 90 mph in a school zone trying to get to your dying grandmother, you’ll usually get a lesser sentence than if you deliberately inject a lethal but painless substance into a comatose patient where consent for his death was not provided.  Both are dead, but the law hates you much more if you actually intended to kill someone.  Society usually feels the same way.  It always has.

And crimes are like flies.  If you get one on you, it’s easy to get a dozen more all at once.  If you shoot someone dead in a city street, you’re not just going to get charged with murder.  You’ll get charged with everything from reckless endangerment to disturbing the peace.  As the movies teach us, the juries decide the facts and whether to convict an accused person.  After that, the judge lays down the sentence.  Today, the “lesser” crimes you’re charged with are often more of a formality – a chance for the government to run the score up on you.  When a judge issues your sentences for each crime, the sentences will usually run concurrently.  Even if the end result is the same, the prosecution got to increase his yearly tally by several convictions rather than merely by one.

If that isn’t murky enough, sometimes the judge sentencing you is bound by a statute that mandates a minimum sentence for the crimes you committed.  18 U.S.C. Section 924(c)(1)(A) states that anyone who “uses or carries a firearm” in relation to “a crime of violence” shall:

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

Does this sound like one crime with merely three levels of egregiousness, or three separately-identified crimes?  What if the prosecution proves that you committed an interstate robbery, but the jury decides that there is reasonable doubt as to whether you actually discharged your firearm?  But then the judge decides during sentencing that it was more likely than not that you did?  In the old way of doing things, you get 5 years.  In the new way, you could get over 10.

In 2002, in the case of Harris v. United States, a conservative bloc of the Supreme Court, led by William Rehnquist and Sandra Day O’Connor, disagreed with the obvious logic of the above.  Based in part upon their own prior ruling in a 1986 case called McMillan v. Pennsylvania, the Court decided that it is possible, however difficult, to read that statute and think that instead of having identified three separate crimes, it only talked about one crime with three possible levels of egregiousness for the purposes of sentencing.  Aha! they exclaimed; so the jury can just find for the crime, and then the judge can decide what he wants because it’s only a statute about sentencing.  And the evidentiary requirements for sentencing are lower than they are for conviction by a jury, which is also okay because sentencing is different.  It’s totally, completely different.

So if a jury convicts you of one crime but not another, a judge can convict you of that harsher crime if there is a mandatory minimum statute in the picture.  The 6^th Amendment would like a word here.

A crime is a crime because a punishment attaches if you are found to have done it.  The only reason to call something a crime in the first place is because you’d like to lock someone up (or worse) for having done it.  If a fact is required for punishment to be imposed on a person, that fact must be submitted to a jury.  This was the logic of the English tradition, where the 6^th Amendment came from.  And it took 11 years after Harris for Justice Clarence Thomas to restore that original meaning to it.  His opinion in the case of Alleyne v. United States is worth a read.

Crime and punishment are joined at the hip.  Bad things happen when non-originalist Supreme Court justices shoot from theirs.

Confrontation

What’s the capital of North Carolina?  Hint: it’s named after this guy.  His name was Sir Walter Raleigh.

The reason a state capital was named after him is because of his death.  Raleigh was a victim of both a sham trial and double jeopardy.  When Elizabeth I died in 1603, James I succeeded her.  The succession was controversial, and subject to multiple plots against it.

Raleigh was implicated in the Main Plot to overthrow James I due to the allegations of him having met with Lord Cobham – the architect.  Cobham, conveniently out of the country and therefore unavailable to testify, wrote the English a sworn confession naming Raleigh as his co-conspirator.  This was hearsay.  It was just a statement, which could have been made by anyone and said anything; imposed upon the tribunal as though it was the self-evident truth.

Raleigh, indignant, pointed that out.  “[Let] my acuser come face to face, and be deposed. Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!“

Raleigh’s plea to confront his witness went unanswered.  Cobham never appeared, so Raleigh never got to cross examine his own accuser.  It was understood almost immediately that this was a mockery and travesty of justice, but Raleigh was convicted anyway.  Raleigh was imprisoned but temporarily spared by King James, who commissioned him for another voyage.  But after a disaster in Guiana, the Spanish pressured James to reinstate the punishment against Raleigh.  Off went his head.

The Confrontation Clause in the 6th Amendment was written in memory of Raleigh.  If you are accused of a crime, you have a right to confront the accusers and witnesses against you.  Pretty straightforward, unless you’re a member of the Supreme Court majority in 1980.

Yet another example of Warren Berger and/or William Rehnquist being so overzealous against crime that they make a mess of constitutional law.  In Ohio v. Roberts, the Supreme Court created an exception to the Confrontation Clause allowing admission of the kind of statement Lord Cobham issued against Raleigh if it bears “indicia of reliability.”  Do you know what that means?  I don’t, and neither did most of the federal judiciary for over two decades.

Originalism restored the meaning of the Confrontation Clause.  Justice Scalia, who was in his day the most influential originalist in the history of American jurisprudence, wrote for the Court in Crawford v. Washington that the only indicia of reliability that could satisfy the Confrontation Clause… was confrontation.  It simply doesn’t make sense that a statement from outside the four corners of a courtroom would be admitted against a person whose life, liberty, and property are at stake.  How is it to be shown reliable?  Can it really be the case that a prosecution can merely offer it to a jury and that it can be accepted without challenge?  What would even be the point of having rules of evidence in the first place if you can do that?

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A statement or document having an “indicia of reliability” implies that it actually isn’t reliable at all.  It was an instruction upon courts to conceive of reasons why something that might help get a man convicted should be admitted even if it would lead to the kind of sham trial that took Sir Walter Raleigh’s head.  So also was the rule allowing courts to impose sentences on criminals who were not found by a jury of their peers to have committed all of the elements of a crime, and the rule allowing people to be convicted by a mere majority, rather than a unanimous jury.  Flexing and straining definitions of terms, loosening rules and standards to allow for more expedient results in cases; these are temptations that strike the hearts of many in the judiciary.  Liberals are not the only people who do this, and the Rule of Law sees threats from all directions.  All three of the above issues were bastardized not by liberals but conservatives.  Richard Nixon’s “law and order” constructionist jurists made a mess of both, and created more pieces to be picked up by those who came later.  Originalism isn’t a perfect method of judging, and a future column will get into that.  But at a minimum, it is a necessary discipline because of its basis in definitions and its rich connections with history.

And originalism is also why the 6th Amendment isn’t itself a mere piece of history.  It is alive and well protecting your rights in ways you often don’t appreciate.  So appreciate it. You may not have it for long.

– Vivek

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[1] If you’ve ever played a role-playing video game, you may have been required to upgrade your character’s “constitution.” The word from its Latin origins translates to “composition.”  The tough stuff you’re made of.