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The Federalist Society

Originalism in Criminal Procedure 2-27-10

In recent years, the Supreme Court has relied on originalist arguments in ruling for defendants on issues of Fourth Amendment searches and seizures, Sixth Amendment confrontation and cross-examination, and Sixth Amendment jury-trial guarantees at sentencing. Originalists claim that these rulings are essential to reintroduce checks on governmental power, to protect defendants, and to reinforce juries. Critics object that the constitutional text and history provide only weak foundations for these new rights, that there are multiple plausible originalist approaches to each of these clauses, and that these rights misfire when superimposed on the modern criminal justice system. This debate will weigh the pros and cons of originalism and its appropriate role in interpreting the criminal procedure provisions of the Bill of Rights, particularly the Fourth and Sixth Amendments. The Federalist Society's Student Division presented this debate at the 2010 Annual Student Symposium on February 27, 2010. Speakers included Prof. Stephanos Bibas of the University of Pennsylvania Law School; Prof. Jeffrey Fisher of Stanford Law School; and Prof. Christopher Yoo of the University of Pennsylvania Law School as the moderator.
In recent years, the Supreme Court has relied on originalist arguments in ruling for defendants on issues of Fourth Amendment searches and seizures, Sixth Amendment confrontation and cross-examination, and Sixth Amendment jury-trial guarantees at ...
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