Law Commons^™

Do As I Say And Not As I Do: Dickerson, Constitutional Common Law And The Imperial Supreme Court, Kevin Mcnamee

Fordham Urban Law Journal

This Comment examines the Supreme Court's Miranda jurisprudence through the lens of the "constitutional common law" theory, which suggests that the Supreme Court has crafted a large body of subconstitutional rules that are not compelled by the text of the Constitution but serve to protect values implicit in the text. As a result, such rules are subject to the limitations of modification and nullification by later courts. After presenting the characteristics of the constitutional common law theory and its relationship to federalism and separation of powers, the author suggests that the theory can explain the erosion of Miranda decision's brightline …