Originalist History & Dead Horses

"The rumors of the death of my horse are greatly exaggerated. My horse is not-history!" Peter Tillers, April 21, 2007.

Notes:

This statement is a comment on the proper role of history in the interpretation of the Confrontation Clause and, by extension, on the debate between Thomas Y. Davies and Robert Kry (go to current issue, Brooklyn Law Review to access Robert Kry, Confrontation Under the Marian Statutes: A Response to Professor Davies (PDF), 72 Brooklyn Law Review (No. 2, 2007) and Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule": A Reply to Mr. Kry (PDF), id. ).

I maintain:

1. Davies won his debate with Kry;

2. It is probable that the Court will eventually acknowledge that Davies got it right and that Scalia's originalist account of the Confrontation Right does not hold water; but

3. If moment no. 2 dawns, it does not follow that it is more probable than not that the Court will repudiate or substantially modify its holding in Crawford.

N.B. I am indebted to David Kaye for pointing out the following important discussion of dead horses: Riding A Dead Horse