366
Opinion of Thomas, J.
Court's current focus on hearsay exceptions that are "firmly rooted" in the common law. See ante, at 355-356, n. 8. The Court has never explained the Confrontation Clause implications of a State's decision to adopt an exception not recognized at common law or one not recognized by a majority of the States. Our current jurisprudence suggests that, in order to satisfy the Sixth Amendment, the State would have to establish in each individual case that hearsay admitted pursuant to the newly created exception bears "particularized guarantees of trustworthiness," and would have to continue doing so until the exception became "firmly rooted" in the common law, if that is even possible under the Court's standard. This result is difficult to square with the Clause itself. Neither the language of the Clause nor the historical evidence appears to support the notion that the Confrontation Clause was intended to constitutionalize the hearsay rule and its exceptions. Although the Court repeatedly has disavowed any intent to cause that result, see, e. g., ante, at 352; Idaho v. Wright, 497 U. S., at 814; United States v. Inadi, 475 U. S. 387, 393, n. 5 (1986); Dutton v. Evans, 400 U. S., at 86; California v. Green, 399 U. S., at 155, I fear that our decisions have edged ever further in that direction.
For the foregoing reasons, I respectfully suggest that, in an appropriate case, we reconsider how the phrase "witness against" in the Confrontation Clause pertains to the admission of hearsay. I join the Court's opinion except for its discussion of the narrow reading of this phrase proposed by the United States.
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