I struggled quite a bit over what I should talk about today. I know a little bit about exploratory fact investigation [1] and about related matters such as induction and what philosophers of science call the logic of discovery. [2] I thought about discussing the worrisome implications of Crawford v. Washington [3] for constitutional regulation of early phases of criminal investigation, [4] about the possibility that Crawford might further weaken the already faint prospect that the Court might use the general due process guarantee to scrub criminal investigation of some pathologies that John Langbein complains about [5] and other pathologies that do not seem to worry him nearly as much. [6] But as alluring as this topic is, it has nothing to do with the topic under discussion by this panel, the role of history in the interpretation and elaboration of the Confrontation Clause. So I have decided to stick to the assigned topic, history.

But my decision not to go off on a tangent dooms me to play the role of a Harold Carswell; I have to be a kind of academic version of Harold Carswell. Carswell, you may recall, was one of Richard Nixon’s nominees to the Supreme Court. You will also recall that Senator Roman Hruska spoke out in defense of that unsuccessful nomination and nominee. Hruska, a Phi Beta Kappa graduate of Creighton University, said,

Even if he [Carswell] was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there.[7]

This, alas, is the role I have to play -- the role of a Harold G. Carswell -- because I know practically nothing about legal history -- and the little I once knew I have forgotten.

Being an ignoramus, I struggled over this question. But after due deliberation I concluded that an ignoramus can make a contribution to an understanding of the subject under discussion, the role of history in constitutional argument about the confrontation clause.

I know what some of you are thinking. You're thinking, "I know Justice Scalia -- or, in any event, I know something about you Tillers, and I know this much: Tillers, you're no Scalia!"

I confess that that I'm no Scalia. In particular, I confess that I can't begin to match Scalia's historical learning.

The papers presented by Professors Kirst[9] and Davies[10] for this conference make a convincing case that Justice Scalia got some important parts of his legal history wrong and that at least some of the mistakes that Scalia made were pretty elementary from a historian's point of view.[11]

Although Professors Kirst and Davies agree that history was misused in Crawford, the precise moral they draw from this is different. The argument in Professor Kirst's paper suggests that Professor Kirst believes that the remedy for the Court's misuse of history is for the Court to avail itself of better historical scholarship, to make use of state-of-the-art scholarship that gives a truer (and broader) picture of the original purpose, or intended meaning, of the Confrontation Clause. Professor Davies, by contrast, hints that the appropriate remedy for the Court's abuse of history is for the Court to (largely) abandon the use of history (at least for the interpretation of some constitutional rules or principles).

Let me first say a few words about the remedy that Professor Kirst's argument suggests, about the notion that the appropriate remedy for the Court's shabby historical scholarship is better historical scholarship for and on the Court. I suspect that this remedy will not work. The reason for my skepticism is that I think there is an important sense in which cutting-edge historical scholarship was available to the Court. If the Court's reliance on history was something more than mere adhockery, more than a makeweight, the historical distortions and mistakes found in Crawford (and in decisions like it) occurred not only because the Court didn't know how to do legal history but also because the Court didn't know how to use legal history. Crudely put, the problem is that the Court couldn't recognize good legal history even if fell over it.

If the Scalias of the judicial world can't get their legal history straight, it's practically certain that the Harold Carswells and Peter Tillers of the world can't do so either. Ignoramuses ("ignorami"?) like me don't know how to do good legal history. Furthermore, ignoramuses can't tell the difference between good legal history and bad legal history -- and consequently they don't know how to sniff out the good historical stuff.

I don't mean to suggest that the current Justices of the Supreme Court are as ignorant of legal history as I am. In this respect they are surely at least a step or two above the Carswells and the Tillers of the world. But I doubt that any of them are much better at their legal history than Scalia and Rehnquist are. Indeed, I suspect that in this respect some of them are at least a notch or two below Scalia and Rehnquist. If I am right about that, I have to agree with Professor Davies:

The problem here resembles a problem that that arises under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594 (1993), a decision that requires federal trial judges to serve as "gatekeepers," -- to use their own wits in order to allow good science into federal courtrooms and to keep junk science out:

How can you get amateurs to make sound professional judgments? If you can't do that, how do you get amateurs to make sound judgments about the credentials and conclusions of professionals?

There is no easy answer to this puzzle. The history of judicial use of history suggests it is not easy to turn sow's ears into silk purses.[12]

* Professor of Law, Cardozo School of Law, Yeshiva University.

[1] See, e.g., A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991).

[2] Today the notion of a logic of discovery is much discussed. Karl Popper, perhaps inadvertently, deserves credit for first popularizing this notion. See K. Popper, Logik der Forschung (1934) (the word “Forschung” is best translated as “research” or “investigation,” but the first English translation of Popper’s book rendered the title as “The Logic of Discovery,” see K. Popper, The Logic of Discovery (Basic Books, 1959)).

[3] 158 L. Ed.2d 177, 124 S. Ct. 1354, 541 U.S. -- (2004).

[4] Truth-oriented federal constitutional constraints on preliminary phases of criminal investigation are already de minimis. See, e.g., California v. Trombetta, 467 U.S. 479 (1984) (no due process violation because government failure to refrigerate clothing for DNA testing was not in bad faith). It is possible – if not inevitable – that the skepticism voiced by the Court in Crawford about the possibility of appellate assessment of the trustworthiness of testimonial evidence, augurs continuing or even heightened reluctance by the Court to require the judiciary to police, in the name of due process, the trustworthiness of police investigation. Of course, Crawford does cast a backward shadow – it does influence pretrial police investigation – but the size of that shadow may turn out to be rather small – because it may turn out that relatively few types of pretrial statements are “testimonial” for purposes of a Crawfordized, or Friedmanized, Confrontation Clause. In any event, under any interpretation of Crawford – whether narrow or broad – the Confrontation Clause has no application to tangible evidence that does not contain any symbols deposited by human beings that are designed to communicate information – to evidence such as blood, fingerprints, glass fragments, tire tracks, footprints, and images recorded by automatic cameras.

[5] John Langbein worries most about the degradation of evidence by partisan lawyers in an adversary system such as ours. See, e.g., J. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985). See also J. Langbein, The Origins of Adversary Criminal Trial 331-334 (2003).

[6] John Langbein does not worry nearly as much about unimaginative investigation. But imagination is essential to effective investigation. See P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931, 934 (1991). See also P. Tillers, The Fabrication of Facts in Investigation and Adjudication, 1995 & 1998, at http://tillers.net/fabrication.html.

[7] [Reporter] [byline] [section] [page] [column] New York Times (March 17, 1970).

But see Bret Stephens, In Praise of Mediocrity, Jerusalem Post (July 16, 2002) (“Hruska was on to something.”).

[8] Justice Scalia was the author of the Court’s opinion in Crawford.

[9] Roger W. Kirst, Can History Define the Structure of Confrontation Doctrine?, – Brooklyn L. Rev. – (200-).

[10] Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Last Minute Originalism Errors in Crawford v. Washington, – Brooklyn L. Rev. – (200-).

[11] Professor Davies argues that Rehnquist, in dissent, did no better: Rehnquist’s historical scholarship also suffers from grievous flaws. See Davies, ibid, at --.

Professors Kirst and Davies point to different errors in Justice Scalia’s legal history and they draw different lessons from the distinct errors that they identify. The errors identified by Professor Davies identifies are more pertinent for purposes of my little peroration – because, although Professor Kirst’s paper makes a very plausible case that the Framers saw the Confrontation Clause as a broad – or “political” – ideal, it is practically incontestable that Justice Scalia did commit the historical errors that Davies identifies and it is hard to avoid Professor Davies’ conclusion that a competent legal historian would not have committed the errors that Justice Scalia committed.

My paper does not address the question of whether an accurate rendition of the historical record or whether reliance on a different swath of human history would support the result that the Court reached in Crawford. My paper addresses only the question of the extent to which the Court should rely on its understanding of centuries-old legal precedents and practices to fashion and interpret constitutional guarantees in the 21^st century. For this purpose it is pertinent that the historical account that Justice Scalia constructed was demonstrably incorrect.

Although I think Scalia got his legal history wrong, it does not necessarily follow that I think that Crawford is an unwelcome decision. This paper does not address the more general question of whether Crawford is a good thing. (My answer would be a qualified one; I would say that the answer depends on how Crawford is read and on its implications. See n. 4, above.)

[12] We could try to slice this historical pickle in a more direct way: we could try to funnel state-of-the-art historical scholarship to the Supreme Court by putting state-of-the-art legal historians on the Supreme Court bench. For example, perhaps someone could persuade President George W. Bush (and the U.S. Senate) to put Professors Richard Friedman, Roger Kirst, Thomas Davies, John Langbein, and Mirjan Damaška on that elevated bench. But this ridiculous little thought-experiment only serves to make it very clear that the question of judicial competence or incompetence in matters historical is not the only factor that has a fundamental bearing on the question of the appropriate role of the history (or histories) of the 18^th century in 21^st century constitutional adjudication. The thought-experiment should make us wonder, first, about the relative importance of historical knowledge for constitutional adjudication. Are there other forms of knowledge we want our Supreme Court Justices to have? If so, how important are those other forms of knowledge comparatively speaking – forms of knowledge such as mathematical knowledge, knowledge of physics, knowledge of biology, knowledge of biochemistry, geographical knowledge, knowledge of probability theory, literary knowledge, knowledge of economics, sociological knowledge, knowledge about psychology and psychiatry, knowledge about computers, religious knowledge, knowledge of moral theory, and common sense knowledge? The thought experiment suggests another obvious but nonetheless fundamental difficulty or family of difficulties. If behavior in academic venues is any guide, any prudent observer of American judicial behavior is required to entertain the cautionary thought that even a Court that is staffed entirely by eminent legal historians is likely to be riven both by disputes over historical questions and by disagreements about how historical “facts” and about which historical facts should be used in contemporary constitutional adjudication. Expertise in the historian’s craft will not necessarily produce consensus about many historical questions. It is even less likely that historical expertise will resolve fundamental disagreements about the proper relationship between tradition and constitution.