Thanks for posting. Very helpful. And now I’m glad the decision turned out the way it did.
I believe there should be no “common law” (ie evolving body of law based on precedent) for the Constitution. The real common law can evolve as it has for a thousand years, and if one court goes wrong others can steer it right again. And if they all go wrong the legislature can overrule it all with a statute (cf. The Statute of Frauds).
With Constitutional law there is only one court, and that court presumes to be superior to the legislature.
Thus I think whenever a constitutional case presents itself, the court should review the Constitutional issues de novo, starting with reading the text fresh and looking only to contemporaneous accounts (and history at tht time) if it’s necessary to figure out what it means.
"The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The Amendment goes on to preserve other rights for criminal defendants but says nothing else about what a “trial by an impartial jury” entails.
"Still, the promise of a jury trial surely meant something— otherwise, there would have been no reason to write it down. Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely abridged by statute. Imagine a constitution that allowed a “jury trial” to mean nothing but a single person rubberstamping convictions without hearing any evidence—but simultaneously insisting that the lone juror come from a specific judicial district “previously ascertained by law.” And if that’s not enough, imagine a constitution that included the same hollow guarantee twice—not only in the Sixth Amendment, but also in Article III.8 No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial.
"One of these requirements was unanimity. Wherever we might look to determine what the term “trial by an impartial jury trial” meant at the time of the Sixth Amendment’s adoption—whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict. "