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

What Does This Have To Do with Evidence?

Nothing, really. But read Adam Gopnik's hilarious review (in the New Yorker) of Zachary Leader’s biography of Kingsley Amis.

NBC's Egregious Mistake: Publishing the Video by the Virginia Tech Killer

This is far worse than Don Imus: it appears that NBC published the Virginia Tech mass murderer's video.

Greed knows no bounds at NBC.

I hope the wrath of the nation will descend on NBC. If it doesn't, we have much reason to fear for our future. Perhaps now there will be contests among mass murderers for posthumous notoriety, and perhaps a secular version of the suicide bomber will multiply in our midst. (People will do almost anything to get on TV.) God help us.