Originalism and the Common Law: The Case of Confrontation


Photo Stanford Law School

Bernadette Meyler is the Carl and Sheila Spaeth Professor of Law and Associate Dean for Research at Stanford Law School. She is the author of Theaters of Pardoning (Cornell University Press, 2019) and co-editor of New Directions in Law and Literature (Oxford University Press, 2017) and The Oxford Handbook of Law and the Humanities (Oxford University Press, 2019). Her article “Common Law Confrontations” appears in the Law and History Review symposium on originalism and legal history (volume 37.3).

Originalist jurists frequently turn to the common law of the Founding Era to illuminate the meaning of the Bill of Rights. This practice resonates with Founding Era protests against the initial body of the Constitution, many of which claimed that it failed to secure common law rights for Americans. But which common law? As Mary Bilder and many other legal historians have shown, legal regimes within the colonies not only diverged from British law but were permitted to do so, at least to a certain extent. During the eighteenth century, a number of the colonies came to embrace a form of common law more similar to the British, a trajectory that emerges with particular clarity from William Nelson’s recently completed volumes on the common law in colonial America. Yet differences persisted such that, after the Founding, works like Hugh Brackenridge’s Law Miscellanies or St. George Tucker’s version of Blackstone’s Commentaries, highlighted the divergence between English and domestic common laws. As I have previously argued, the various common laws of the colonies, as well as of England, should play a role in understanding constitutional provisions that sound in common law.

“Common Law Confrontations” further demonstrates the importance of assessing eighteenth-century legal practices, rather than simply law on the books, in any attempt to interpret the original meaning of constitutional provisions. The relation between local and state-level law, and between the practices of particular communities and the official rules of the state, were not always harmonious in early America, as Laura Edwards has demonstrated in the post-ratification context in The People and Their Peace. The constitutional provisions treating criminal procedure, such as the Fourth, Fifth, and Sixth Amendments, in particular, refer to a number of common law principles, including, among others, the prohibition against unreasonable searches and seizures, the rights to a trial by jury and to confrontation, and the restriction against double jeopardy. Supreme Court cases tend to interpret these rights largely through the lens of William Blackstone’s Commentaries on the Laws of England and sometimes other British authorities, but rarely if ever treat American variants on the common law, and even more assiduously ignore eighteenth-century American legal practice.

Some might ask why we should pay any attention to domestic practice: many American lawyers from the Founding Era had trained in England and the Commentaries was widely received in the colonies upon its publication. So shouldn’t we assume that the common law provisions of the Constitution referred primarily to English and not American common law and to the formal articulations of law rather than its nuances as applied? Isn’t this particularly the case when the elites ratifying the Constitution might have had more exposure to the work of Blackstone than the local practices implementing common law principles? And even if we wished to attend to the implementation of criminal procedure, how would we go about discerning it, given the notorious obscurity of the relevant sources?

 Based on the example of the Confrontation Clause, I think it is both possible to reconstruct some aspects of local practice and show its importance for understanding constitutional provisions. Examination of minute books from criminal trial courts, case files and the documents that remain within them, and notes taken from depositions, allows a partially open window onto the nature of the pretrial proceedings and the evidence accepted at trial in colonial New Jersey. While the sparseness of trial records leaves some questions to speculation, careful study of the lists of witnesses who appeared or did not and comparison of these with those whose testimony was accepted at trial can suggest whether or not particular witnesses gave their evidence in person or were heard only through a written record of their prior depositions. Taken together, these materials call into question several of originalists’ claims about the nature of the confrontation right in the late eighteenth century, including the central idea that it would only have been acceptable to admit written records of earlier testimony if the prior proceeding had permitted the defendant to cross-examine the witness in question.

One particular case from the 1770s in Bergen County, New Jersey furnishes a flavor of pretrial proceedings. A number of Isaac Conklin’s neighbors accused him of a long-ago crime—the murder of a weaver from other parts. The remaining documents demonstrate the difficulty of ascertaining the truth of the matter concerned as well as the many interests of Conklin’s neighbors, one of whom the accused had even defamed. Multiple depositions were taken in the case, many on different days and even before different justices of the peace. These documents still exist and give some insight into how pretrial examinations were conducted. There is no evidence that the defendant was present or of cross-examination. Instead, the justices of the peace themselves may have taken the lead in interrogating the witnesses’ stories.    

Although the Conklin case does not show up in remaining records and may never have made it to trial, the minute books and files of other cases suggest the possibility that similar depositions may have been admissible even when those who had furnished them failed to show up in court. A deposition of Garrett Sickles appears in the 1750 felony trial of William Tuttle and Abraham Gibbons for breaking and entering and stealing. In a number of other instances, the apparent absence of a witness from court indicates that their evidence may have been delivered in writing rather than orally.  

But again, the scenario in the Conklin case raises the question of why the disputes of bickering neighbors that led to a murder accusation should affect our understanding of constitutional meaning; how do these local disputes bear upon the Confrontation Clause? One important link emerges from the documentary record. Among the Bergen County justices of the peace recording witnesses’ testimony in the Conklin case were John Fell and Peter Zabriski. When New Jersey convened a convention to ratify the Constitution of the United States, these two justices of the peace were among the members. To the extent that originalism is justified through reliance on the democratic legitimacy of the Constitution and the notion that the Constitution’s meaning was fixed through ratification, ratifiers’ understandings remain highly salient in determining original meaning. It is difficult to imagine that these justices of the peace entirely put aside their local understanding in meeting the Constitution and thought only about the common law of Blackstone rather than the legal practices in which they were enmeshed as they evaluated the new Constitution and its meaning.

Does this indicate that the Supreme Court should simply abandon its current Confrontation Clause doctrine as inconsistent with the common law of New Jersey? I don’t think so. The record of legal practice from colonial New Jersey simply indicates that the Supreme Court’s story is not the only one that could be told about the contours and meaning of a common law confrontation right at the time of the Founding. Rather than presenting us with another airtight historical narrative about the legal backdrop of the Constitution, “Common Law Confrontations” instead suggests that local practice may be both relevant and unsettling for a tidy originalist story. The complexity of the legal landscape does not simply furnish an opening to reverse conventional hierarchies, placing law in action above law on the books. It calls into question the very possibility of securing a determinate, or at least singular, original meaning of many constitutional provisions. Laura Edwards has written that “the common law tradition was capacious enough to allow for considerable ambiguity” (The People and their Peace, 61); if the ratifiers of the Constitution could accept that ambiguity, why can’t we?

This leaves open the normative question of how the Supreme Court should treat this ambiguity in its jurisprudence. In the case of Gamble v. United States, the double jeopardy case decided this term, Justice Alito furnished one possible answer, stating that “something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court.’” According to this view, the Court’s precedents trump original meaning if original meaning is ambiguous. In this instance, the common law of the Court would prevail over that of the Founding Era. Justice Alito’s method, however, leaves open situations in which the Court’s precedents do not dictate a result. It also presumes that other factors do not weigh against continuing with a particular line of cases. His opinion thus leaves open a number of questions and raises others for debate. But it is on this terrain of ambiguity rather than certainty that methodological arguments about the role of originalism should take place.