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The Uses of History in Crawford v. Washington
International Commentary on Evidence (2004)
  • Frank R. Herrmann

To a striking degree, both the majority and concurring opinions in Crawford v. Washington are replete with references to Anglo-American historical materials, used to support differing conclusions about the application of the Confrontation Clause to testimonial hearsay. This essay sets out Justice Scalia's and Chief Justice Rehnquist's historical arguments and then employs the standards of legal historians to evaluate whether the two opinions use history in a valid manner. The essay concludes that the "history" in Crawford is not that of an historian, but is a "usable past," as conceived by Cass Sunstein and Stephen Griffin.

  • confrontation,
  • history,
  • originalism
Publication Date
Citation Information
Frank R. Herrmann. "The Uses of History in Crawford v. Washington" International Commentary on Evidence Vol. 2 Iss. 1 (2004)
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