Two Cheers, Not Three for Sixth Amendment Originalism

This Essay makes three basic points. 1 First, originalism is a good approach where the soil supports it, but many criminal procedure cases, particularly recent cases before the Supreme Court, lack solid historical foundations.2 The Court is trying to build too much of an edifice on quicksand.It is going to sink.Second, defense lawyers should be careful what they wish for.Though many defense lawyers cheer certain originalist decisions, they would not like the whole package that would result from applying a consistent originalist philosophy.Justice Thomas might be willing to give us such a package?but it does not appear, on balance, more favorable to defendants than our current system.Third, although Professor Jeffrey Fisher rightly touches on the idea of bright-line rules, 4 there are a number of areas where originalism leads away from bright-line rules.Justice Scalia likes originalism; he also likes formalism.5 In some cases, how-*Professor of Law and Criminology, University of Pennsylvania.Thanks to Professor Jeff Fisher for a lively and illuminating debate and for his comments.l.This Symposium Essay expands upon and extends themes that I originally explored in Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 GEO.L.J. 183 (2005).2. Apprendi v. New }erset;, 530 U.S. 466 (2000), is one example.For my earlier critique of its historical moorings see Stephanos Bibas, judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.