Criminal Trials

Argues that the petty crime exception is not a clear and concrete constitutional command. First interprets the criminal trials clause using textualism and then turns to originalism. Discusses the constitutional convention’s treatment of the petty crimes clause, as well as the ratification campaign’s discussions of it. Also looks to Blackstone and English/colonial founding-era criminal trial procedures.

Analyzes the original meaning of the word “all” in Article III. Discusses that Justice Story relied on the word “all” to explain the obligatory jurisdiction of the federal courts in Martin v. Hunter’s Lessee. In part responds to Professor Amar’s argument that the word “all” means that only a federal court (rather than any particular level of court) must be able to exercise jurisdiction. Contends that “all” means the same thing when used in the admiralty, federal question, ambassador, and state-as-a-party clauses in Article III. Looks to the framing and constitutional convention for his arguments.

Argues that originalism has been applied selectively to different parts of criminal procedure, e.g. with clarity to the allocation of sentencing authority between judge and jury, but not to questions of jury size, decision rules, and more. Discusses what juries looked like at the founding and draws on numerous founding-era sources.

Argues that contemporary cases of Apprendi and Blakely revolutionized criminal procedure. Seeks to provide historical and constitutional evidence for our system’s preference for the jury. Posits that the original jury trial right was a community–rather than individual–right, as the grammar of Article III suggests, and that the Sixth Amendment did not change this fact, but rather incorporated it.

Discusses the revolutionary impact of Crawford and Blakely and the values of originalism vs. formalism in criminal procedure. Explains the framers’ conception of a jury and discusses how it influenced Justice Scalia.

Concludes that impeachment is only for crimes. Draws on the language of Article III and the history of impeachment in England and America to reconstruct the general understanding an American lawyer would have had about impeachment at the time of the founding. Also cites Blackstone and other founding era-sources.

Arguing that the right of a criminal defendant to trial by a jury is deeply rooted in the American legal tradition.

Arguing that the Framers understood the concepts of venue and vicinage to be separate and distinct from one another.