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Full-Text Articles in Law
When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii
When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii
Michigan Law Review
For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment - …
Taking Aim At An American Myth, Paul Finkelman
Taking Aim At An American Myth, Paul Finkelman
Michigan Law Review
Every American had a musket hanging over his fireplace at night, and by his side during the day. Like Cincinnatus, time and again Americans dropped their plows to shoulder their arms, to fight the Indians, the French, the Indians, the British, the Indians, the Mexicans, the Indians yet again, and then, from 1861 to 1865, each other. American men were comfortable with guns; they needed them and wanted them. They felt at home in woods, in search of food, or in defense of their homesteads. It is a story as old as our first pulp novels and earliest movies. It …
Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii
Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii
Michigan Law Review
Paraphrasing Justice Holmes, law is less about logic than experience. Courts and scholars have now had thirty-four years of experience with Miranda v. Arizona, including the Court's recent endorsement in Dickerson v. United States last Term. Looking back over this experience, it is plain that the Court has created a Miranda doctrine quite different from what it has said it was creating. I think the analytic structure in Dickerson supports this rethinking of Miranda. To connect the dots, I offer a new explanation for Miranda that permits us to reconcile Dickerson and the rest of the post-Miranda doctrine with the …
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Nevada Law Journal
No abstract provided.
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Scholarly Works
A standard view at the time of the adoption of the Constitution was that “a constitution does not in itself imply any more than a declaration of the relation which the different parts of the government have to each other, but does not imply security for the rights of individuals.” The drafters of the state constitutions had “assumed that government had all power except for specific prohibitions contained in a bill of rights.” When the federal Constitution was transmitted to the states by Congress, Nathaniel Gorham of Massachusetts defended the omission of a bill of rights based on the federal …
Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee
Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee
Scholarly Works
It has become common to believe that those who ratified the Fourteenth Amendment “incorporated” not only the specific guarantees of the federal Bill of Rights, but also the other fundamental rights “retained by the people” in the Ninth Amendment. Even among those who acknowledge that the Ninth Amendment was originally a “federalism” provision that simply “retained” all that had not been granted as “powers” to the federal government are those who contend that, in light of the adoption of similar provisions in the state constitutions, by 1866 this language had become a free-floating affirmation of unenumerated rights. This Article attempts …