I mourned the death of Bob Newhart. I had enjoyed him in his eponymous sit-coms, his appearances on The Big Bang Theory, and his banter with Johnny Carson, but I most admired his innovative telephone calls where he presented a new kind of comedy. The routines were funny but, in an indefinable way, subversive. Perhaps as a result, I am the only person that I know of to have cited Bob Newhart in a law review article.
The Supreme Court was in the midst of a series of cases interpreting the right of confrontation in the Constitution’s Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The meaning is not clear from this text and almost nothing in the constitutional debates illuminates them.
Courts and legal academics, including me, weighed in with many people saying that the right could be traced back to the 1603 trial of the cloak-spreader, Sir Walter Raleigh. Raleigh was convicted of treason after the prosecution used affidavits in his trial instead of witnesses who Raleigh could cross-examine. Without going through the legal disputes, I had doubts about the overly confident assertions of judges and academics, such as this one by Justice Scalia: “Raleigh’s infamous 17th-century treason trial remains the canonical example of a Confrontation Clause violation.” And thus, my Newhart reference. After criticizing the views of others, I wrote, “At this point, however, the vision becomes obscured, perhaps by the smoke from the tobacco that the sometime-historian Bob Newhart suggests Raleigh brought back to Europe.” (You can, and should, look up Newhart’s version of the Raleigh telephone call. When you are through with that, look up the Abe Lincoln call.)
R.I.P. Bob Newhart
My Newhart citation was in an article titled, Confrontation Clause Curiosities: When Logic and Proportion Have Fallen Sloppy Dead. Extra points if you get that reference.
Few may know about the constitutional right of confrontation, but almost everyone has heard about the Second Amendment, although discussion of it has been largely absent in the wake of Trump’s shooting. When he carried the gun to the rooftop in the attempted assassination of Trump, wasn’t the young man just exercising his Second Amendment rights? In the shooting’s aftermath, I have not heard the NRA mantra: “The only thing that stops a bad guy with a gun, is a good guy with a gun.” However, I believe that to go to Trump’s rally, you had to surrender your firearms. Don’t the Second Amendment fanatics believe that they should be able to carry guns to a political event? Don’t they believe that they are good people who would have stopped the bad guy? Why should there be a Second Amendment right to carry a gun in Times Square but not to a presidential rally?
“The only freedom which deserves the name is that of pursuing our own good, in our own way, so as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” John Stuart Mill.
