Digital Commons Network^™

Misplaced Constitutional Rights, Brandon L. Garrett

Faculty Scholarship

Constitutional rulings risk an unnoticed type of mission creep: misplacement through adoption in settings that they were not designed to regulate. This Article describes how in a set of important areas—and sometimes despite the Supreme Court’s explicit cautionary language—constitutional rules have taken hold outside of the settings that they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights and standards are often context limited to particular government actors, procedural settings, or remedies. Based on the text of the Constitution or precedent, some rights apply only during civil cases, while others apply only during criminal cases; …