The following words, written by Justice Scalia for seven members of the Supreme Court in today's Crawford v. Washington decision, will — if taken seriously — lob a hand grenade into many regions of Constitutional interpretation. As one who believes that balancing tests are indeed swallowing the Constitution (this is deep into the territory where left libertarian-leaning people meet right-libertarian leading people — a zone I only frequent rather than residing in) I think this has the potential to be a wonderful and transformative tonic for much of what ails constitutional doctrine:
By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.
Of course, it could also lead to disaster if the bright lines get drawn in the wrong places…
It will be absolutely fascinating to see whether and how this principle is applied in all the upcomong cases in which the government claims various exceptions to ordinary rules of criminal and constitutional procedure in order to fight the War on Terror. (I can already imagine an out for the monarchist tendency on the Court, however: treat something as an 'exception' or a 'special case' and it's not a 'balancing' issue.)
Incidentally, the underlying decision in Crawford — that the Confrontation Clause should be interpreted strictly and thus should exclude most types of hearsay — is pretty incendiary too, as it overrules almost 25 years of contrary Supreme Court precedent, if not more.
