Here is an interesting new article, titled Faint-Hearted Fidelity to the Common Law in Justice Scalia’s Confrontation Clause Trilogy, that contends that Scalia’s historical justifications are faulty:

In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation right when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial, unless the judge finds that the defendant’s wrongful act was done with an intent to make the witness unavailable to testify. Justice Scalia’s majority opinion interprets intent to require purpose, only recognizing the “forfeiture by wrongdoing” exception to Sixth Amendment’s confrontation requirement when the defendant “engaged in conduct designed to prevent the witness from testifying.”

In this Article, I argue that this interpretation of Giles lacks a solid foundation in the common law and, notwithstanding Justice Scalia’s opinion (with which a majority of justices agreed in result), should not be followed by lower courts. The Article suggests that the historical sources do not point unequivocally to the conclusion Justice Scalia reaches in his majority opinion. Further, given the fragmented opinions among the justices in the case, even though a majority agree in the case’s result, it is argued that the reasoning of the case should be construed on the narrowest grounds, to allow courts to construe intent in a broad way in light of the common law, rather than in the rather narrow way Justice Scalia defines it. Especially in domestic violence and gang-related cases, a defendant’s conduct that knowingly leads to unavailability can and should still trigger forfeiture, even if there is no purposive intent.

Even assuming Scalia’s historical analysis was accurate, he is still not considering Originalism at the Right time.

This is a theory Ilya and I addressed in Pandora’s Box in the context of the 2nd Amendment.

Interpreting the Second Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. The Supreme Court faithfully executed this strategy in Heller. But what about the Interpreting theSecond Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. TheSupreme Court faithfully executed this strategy in Heller. But what about the right to keep and bear arms as applied to the states? Federal protection against state encroachments on individual liberty began with the ratification of the Fourteenth Amendment. 1868 is thus the proper temporal location for applying a whole host of rights to the states, including the right that had earlier been codified as the Second Amendment as applied against the federal government. 259 Interpreting the right to keep and bear arms as instantiated by the Fourteenth Amendment—based on the original public meaning in 1791—thus yields an inaccurate analysis. The respondents make this mistake in their McDonald brief, however, recounting the history of the Second Amendment in 1791 as dispositive of the meaning of the right to keep and bear arms in 1868.260

While Scalia considers the meaning of the Constitution in 1787 and in pre-revolutionary era, for the 6th Amendment Incorporated through the 14th Amendment, the proper baseline should be 1868, not the revolution or the 20th century.

Analyzing the meaning of the right to keep and bear arms in 1791 was proper inHeller, because the Second Amendment in that case only applied to the federalgovernment. In McDonald, however, the key year is 1868, and the Court shouldlook at evidence from the time of Reconstruction, not the time of the Revolu-tion. To the extent that the common-law right of self defense existed from time immemorial, through the Revolutionary era, earlier evidence is relevant only to the extent it affected mid-nineteenth-century understandings. To put it another way, McDonald asks not so much whether the Second Amendment applies to the states, but whether the right to keep and bear arms—independent of its codification in the Bill of Rights and as understood in 1868—is protected against state infringement by the Fourteenth Amendment.

Justice Alito’s plurality opinion made similar originalim at the right time errors, and focused significantly on the founding era history. While I suppose this is relevant, as the Court applied a Glucksberg-type deeply rooted analysis, the proper temporal period was 1868 and the Reconstruction era.