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Full-Text Articles in Law
Dissing Congress, Ruth Colker, James J. Brudney
Dissing Congress, Ruth Colker, James J. Brudney
Michigan Law Review
The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a total of twenty-nine cases since the 1994-95 Term. Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as solicitous of …
Miranda, The Constitution, And Congress, David A. Strauss
Miranda, The Constitution, And Congress, David A. Strauss
Michigan Law Review
Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …
Dissing Congress , Ruth Colker, James J. Brudney
Dissing Congress , Ruth Colker, James J. Brudney
Faculty Scholarship
This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …
Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley
Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley
Journal Articles
This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Articles
Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
Articles
Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.