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Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal
Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal
Lawrence Rosenthal
Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …
Against Orthodoxy: Miranda Is Not Prophylactic And The Constitution Is Not Perfect, Lawrence Rosenthal
Against Orthodoxy: Miranda Is Not Prophylactic And The Constitution Is Not Perfect, Lawrence Rosenthal
Lawrence Rosenthal
In the four decades since the decision in Miranda v. Arizona, two point of consensus have emerged about that decision. The first area of agreement is that Miranda’s rationale for requiring its now-famous warnings is wrong, or at least dramatically overstated. In Michigan v. Tucker, the Court first labeled Miranda warnings as “prophylactic standards.” For their part, Miranda’s advocates do not spend much time defending its conception of unwarned custodial interrogation as inherently coercive. The second point of agreement is that Miranda has turned out to be a failure combating the coercive nature of custodial interrogation. Despite Miranda, coerced confessions …