Shared constitutional interpretation

Supreme Court Review

Volumn 2000, Issue , 2000, Pages 61-107

  Dorf, Michael C ^a   Friedman, Barry ^a  

^a NONE

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EID: 0043179531     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2000.3109677     Document Type: Article

References (222)

1. 120 S Ct 2326 (2000).
2. 384 US 436 (1966).
3. United States v Dickerson, 120 S Ct 2326, 2329 (2000).
4. This is not to say that current criminal procedure doctrine is in any way a straightforward extension of the rest of the Warren Court's views. Although cases like Miranda and Mapp v Ohio, 367 US 643 (1961), have not been overruled, the Burger and Rehnquist Courts have undermined Warren Court legal doctrines through, inter alia, a variety of rules that reduce or eliminate the penalty that law enforcement must pay for violating suspects' or defendants' rights. See Carol Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466, 2469 (1996) ("The edifice constructed by the Warren Court governing investigative techniques . . . remains surprisingly intact. Rather than redrawing in any drastic fashion the line between constitutional and unconstitutional police conduct, the Supreme Court has revolutionized the consequences of deeming conduct unconstitutional.")
5. Miranda v Arizona, 384 US 436, 467 (1966).
6. Id.
7. Dickerson, 120 S Ct at 2334.
8. See Barry Friedman, Dialogue and Judicial Review, 91 Mich L Rev 577 (1993) (envisioning creation of constitutional meaning as a dialogic process).
9. 120 S Ct at 2332 (citing City of Boerne v Flores, 521 US 507 (1997)).
10. Of late, there has been a veritable flood of commentary disparaging judicial supremacy and urging that greater attention be paid to the role of nonjudicial actors in constitutional interpretation. For a representative sampling, see Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights (1998); Louis Fisher and Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Richard Parker, "Here, the People Rule": A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999). Although we have some sympathy for the notion of shared constitutional interpretation, see Michael C. Dorf, Supreme Court 1997 Term, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 60-73 (1998) (advocating "provisional adjudication" that expressly authorizes experimentation); Friedman, 91 Mich L Rev at 580 (cited in note 8) ("the everyday process of constitutional interpretation integrates all three branches of government"), we think some of this work sweeps too far in denying the Court's supremacy with regard to constitutional interpretation.
11. Of late, there has been a veritable flood of commentary disparaging judicial supremacy and urging that greater attention be paid to the role of nonjudicial actors in constitutional interpretation. For a representative sampling, see Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights (1998); Louis Fisher and Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Richard Parker, "Here, the People Rule": A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999). Although we have some sympathy for the notion of shared constitutional interpretation, see Michael C. Dorf, Supreme Court 1997 Term, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 60-73 (1998) (advocating "provisional adjudication" that expressly authorizes experimentation); Friedman, 91 Mich L Rev at 580 (cited in note 8) ("the everyday process of constitutional interpretation integrates all three branches of government"), we think some of this work sweeps too far in denying the Court's supremacy with regard to constitutional interpretation.
12. Of late, there has been a veritable flood of commentary disparaging judicial supremacy and urging that greater attention be paid to the role of nonjudicial actors in constitutional interpretation. For a representative sampling, see Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights (1998); Louis Fisher and Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Richard Parker, "Here, the People Rule": A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999). Although we have some sympathy for the notion of shared constitutional interpretation, see Michael C. Dorf, Supreme Court 1997 Term, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 60-73 (1998) (advocating "provisional adjudication" that expressly authorizes experimentation); Friedman, 91 Mich L Rev at 580 (cited in note 8) ("the everyday process of constitutional interpretation integrates all three branches of government"), we think some of this work sweeps too far in denying the Court's supremacy with regard to constitutional interpretation.
13. Of late, there has been a veritable flood of commentary disparaging judicial supremacy and urging that greater attention be paid to the role of nonjudicial actors in constitutional interpretation. For a representative sampling, see Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights (1998); Louis Fisher and Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Richard Parker, "Here, the People Rule": A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999). Although we have some sympathy for the notion of shared constitutional interpretation, see Michael C. Dorf, Supreme Court 1997 Term, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 60-73 (1998) (advocating "provisional adjudication" that expressly authorizes experimentation); Friedman, 91 Mich L Rev at 580 (cited in note 8) ("the everyday process of constitutional interpretation integrates all three branches of government"), we think some of this work sweeps too far in denying the Court's supremacy with regard to constitutional interpretation.
14. Of late, there has been a veritable flood of commentary disparaging judicial supremacy and urging that greater attention be paid to the role of nonjudicial actors in constitutional interpretation. For a representative sampling, see Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights (1998); Louis Fisher and Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Richard Parker, "Here, the People Rule": A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999). Although we have some sympathy for the notion of shared constitutional interpretation, see Michael C. Dorf, Supreme Court 1997 Term, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 60-73 (1998) (advocating "provisional adjudication" that expressly authorizes experimentation); Friedman, 91 Mich L Rev at 580 (cited in note 8) ("the everyday process of constitutional interpretation integrates all three branches of government"), we think some of this work sweeps too far in denying the Court's supremacy with regard to constitutional interpretation.
15. Of late, there has been a veritable flood of commentary disparaging judicial supremacy and urging that greater attention be paid to the role of nonjudicial actors in constitutional interpretation. For a representative sampling, see Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights (1998); Louis Fisher and Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Richard Parker, "Here, the People Rule": A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999). Although we have some sympathy for the notion of shared constitutional interpretation, see Michael C. Dorf, Supreme Court 1997 Term, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 60-73 (1998) (advocating "provisional adjudication" that expressly authorizes experimentation); Friedman, 91 Mich L Rev at 580 (cited in note 8) ("the everyday process of constitutional interpretation integrates all three branches of government"), we think some of this work sweeps too far in denying the Court's supremacy with regard to constitutional interpretation.
16. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich L Rev 2625 (1996) (arguing against a right to silence on normative and historical grounds); Akhil Reed Amar and Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich L Rev 857 (1995) (same); R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 Wm & Mary L Rev 15 (1981) (arguing for a right to silence only in the face of interrogation on slight suspicion).
17. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich L Rev 2625 (1996) (arguing against a right to silence on normative and historical grounds); Akhil Reed Amar and Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich L Rev 857 (1995) (same); R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 Wm & Mary L Rev 15 (1981) (arguing for a right to silence only in the face of interrogation on slight suspicion).
18. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich L Rev 2625 (1996) (arguing against a right to silence on normative and historical grounds); Akhil Reed Amar and Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich L Rev 857 (1995) (same); R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 Wm & Mary L Rev 15 (1981) (arguing for a right to silence only in the face of interrogation on slight suspicion).
19. Implicit in the right to be informed of a right to silence, of course, is a right to silence itself. That right appeared to receive explicit protection a year before Miranda in Griffin v California, 380 US 609 (1965) (prohibiting an inference of guilt from a suspect's silence in the face of police questioning). Some post-Miranda cases appear to be inconsistent with a Fifth Amendment right to silence. See Baxter v Palmigiano, 425 US 308, 316-20 (1976) (in prison disciplinary proceeding, permitting adverse inference from silence); Fletcher v Weir, 455 US 603 (1982) (in criminal trial, permitting admission of post-arrest silence for impeachment purposes). These cases can probably be reconciled with Miranda, however. Baxter reflects the Court's general unwillingness to apply the Fifth Amendment to civil proceedings, while Fletcher's problems, whatever they may be, are of a piece with Harris v New York, 401 US 222 (1970), discussed below. See Part I.C.
20. Dickerson, 120 S Ct at 2335.
21. Compare Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975) (explaining how the Court might legitimately be seen to have the power to make law beyond what the Constitution requires); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv L Rev 883 (1986) (less tentatively, same); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 287- 95 (1988) (same, also less tentatively); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190 (1988) (same, taking prophylaxis as paradigm rather than exception) with Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw U L Rev 100 (1985) (challenging the legitimacy of most common law and prophylaxis).
22. Compare Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975) (explaining how the Court might legitimately be seen to have the power to make law beyond what the Constitution requires); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv L Rev 883 (1986) (less tentatively, same); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 287- 95 (1988) (same, also less tentatively); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190 (1988) (same, taking prophylaxis as paradigm rather than exception) with Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw U L Rev 100 (1985) (challenging the legitimacy of most common law and prophylaxis).
23. Compare Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975) (explaining how the Court might legitimately be seen to have the power to make law beyond what the Constitution requires); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv L Rev 883 (1986) (less tentatively, same); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 287-95 (1988) (same, also less tentatively); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190 (1988) (same, taking prophylaxis as paradigm rather than exception) with Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw U L Rev 100 (1985) (challenging the legitimacy of most common law and prophylaxis).
24. Compare Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975) (explaining how the Court might legitimately be seen to have the power to make law beyond what the Constitution requires); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv L Rev 883 (1986) (less tentatively, same); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 287- 95 (1988) (same, also less tentatively); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190 (1988) (same, taking prophylaxis as paradigm rather than exception) with Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw U L Rev 100 (1985) (challenging the legitimacy of most common law and prophylaxis).
25. Compare Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975) (explaining how the Court might legitimately be seen to have the power to make law beyond what the Constitution requires); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv L Rev 883 (1986) (less tentatively, same); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 287- 95 (1988) (same, also less tentatively); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190 (1988) (same, taking prophylaxis as paradigm rather than exception) with Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw U L Rev 100 (1985) (challenging the legitimacy of most common law and prophylaxis).
26. A typical example is David Huitema, Miranda: Legitimate Response to Contingent Requirements of the Fifth Amendment, 18 Yale L & Policy Rev 261 (2000). In Huitema's view, the Fifth Amendment touchstone is voluntariness, but the Miranda rule is nonetheless a justified prophylactic measure because courts cannot accurately distinguish voluntary from involuntary confessions. See id at 269-70. See also Lawrence Crocker, Can the Exclusionary Rule BC Saved? 84 J Grim L & Criminol 310, 312 (1993); John Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1029-30, 1055 (1974).
27. A typical example is David Huitema, Miranda: Legitimate Response to Contingent Requirements of the Fifth Amendment, 18 Yale L & Policy Rev 261 (2000). In Huitema's view, the Fifth Amendment touchstone is voluntariness, but the Miranda rule is nonetheless a justified prophylactic measure because courts cannot accurately distinguish voluntary from involuntary confessions. See id at 269-70. See also Lawrence Crocker, Can the Exclusionary Rule BC Saved? 84 J Grim L & Criminol 310, 312 (1993); John Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1029-30, 1055 (1974).
28. A typical example is David Huitema, Miranda: Legitimate Response to Contingent Requirements of the Fifth Amendment, 18 Yale L & Policy Rev 261 (2000). In Huitema's view, the Fifth Amendment touchstone is voluntariness, but the Miranda rule is nonetheless a justified prophylactic measure because courts cannot accurately distinguish voluntary from involuntary confessions. See id at 269-70. See also Lawrence Crocker, Can the Exclusionary Rule BC Saved? 84 J Grim L & Criminol 310, 312 (1993); John Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1029-30, 1055 (1974).
29. See Boerne, 521 US at 516-29 (1997) (equating the Constitution's meaning with the Court's doctrine); Cooper v Aaron, 358 US 1, 18 (1958) ("[T]he federal judiciary is supreme in the exposition of the law of the Constitution.").
30. See United States v Morrison, 120 S Ct 1740, 1755-59 (2000); Kimel v Florida Bd. of Regents, 120 S Ct 631, 644-50 (2000); Florida Prepaid Postsecondary Educ. Expense Bd. v College Savings Bank, 527 US 627, 636-47 (1999); Boerne, 521 US at 516-36 (1997).
31. 505 US 144 (1992).
32. 521 US 898 (1997).
33. 120 S Ct 666 (2000).
34. See note 31.
35. 18 USC § 3501 provides: Admissibility of confessions (a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. (b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession. (c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law enforcement officer or law enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate [magistrate judge] or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer. (d) Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention. (e) As used in this section, the term "confession" means any confession of guilt of any criminal offense or any selfincriminating statement made or given orally or in writing.
36. See Dickerson, 120 S Ct at 2334.
37. See id at 2338 (Scalia dissenting).
38. See id at 2342.
39. See Boerne, 521 US at 516-29 (1997); Seminole Tribe of Florida v Florida, 517 US 44 (1996). See generally Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 Vand L Rev 407, 408-09 (1999) (noting the Court's preference for its own power and disdain for Congress).
40. Michigan v Tucker, 417 US 433, 444 (1974).
41. Arizona v Roberson, 486 US 675, 688 (1988) (Kennedy dissenting).
42. One particularly troubling manifestation of this disrespect is the practice of police officers questioning suspects "outside Miranda." In this practice, police officers intentionally ignore Miranda, knowing that any statement obtained can be used for impeachment purposes pursuant to Harris v New York, 401 US 222, 225 (1971), or for other purposes consistent with the Miranda exceptions the Court has fashioned. See Transcript of Deputy District Attorney Devallis Rutledge, in Videotape: Questioning "Outside Miranda" (Greg Gulen Productions 1990), excerpted in Charles D. Weisselberg, Saving Miranda, 84 Cornell L Rev 109 at 189-92 (1998). There is simply no way to interpret Miranda as a decision permitting such questioning. To do so makes a mockery of the constitutional right at stake, but the Court's own treatment of Miranda has encouraged this sort of behavior. In addition to its general denigrations of Miranda, in Oregon v Hass, 420 US 714 (1975), the Court thought that questioning outside Miranda was a mere "speculative possibility." Id at 723. Even if that were true in 1975, it no longer is. See Richard A. Leo and Welsh S. White, Adapting to Miranda: Modern Interrogators' Strategies for Dealing with the Obstacles Posed by Miranda, 84 Minn L Rev 397, 460 (1999) (noting that "[a]t least two state courts have held that even statements obtained after an interrogator's deliberate misrepresentation as to the admissibility of the suspect's statement may be introduced for the purpose of impeachment," although one state court has ruled such statements inadmissible as a due process violation).
43. One particularly troubling manifestation of this disrespect is the practice of police officers questioning suspects "outside Miranda." In this practice, police officers intentionally ignore Miranda, knowing that any statement obtained can be used for impeachment purposes pursuant to Harris v New York, 401 US 222, 225 (1971), or for other purposes consistent with the Miranda exceptions the Court has fashioned. See Transcript of Deputy District Attorney Devallis Rutledge, in Videotape: Questioning "Outside Miranda" (Greg Gulen Productions 1990), excerpted in Charles D. Weisselberg, Saving Miranda, 84 Cornell L Rev 109 at 189-92 (1998). There is simply no way to interpret Miranda as a decision permitting such questioning. To do so makes a mockery of the constitutional right at stake, but the Court's own treatment of Miranda has encouraged this sort of behavior. In addition to its general denigrations of Miranda, in Oregon v Hass, 420 US 714 (1975), the Court thought that questioning outside Miranda was a mere "speculative possibility." Id at 723. Even if that were true in 1975, it no longer is. See Richard A. Leo and Welsh S. White, Adapting to Miranda: Modern Interrogators' Strategies for Dealing with the Obstacles Posed by Miranda, 84 Minn L Rev 397, 460 (1999) (noting that "[a]t least two state courts have held that even statements obtained after an interrogator's deliberate misrepresentation as to the admissibility of the suspect's statement may be introduced for the purpose of impeachment," although one state court has ruled such statements inadmissible as a due process violation).
44. One particularly troubling manifestation of this disrespect is the practice of police officers questioning suspects "outside Miranda." In this practice, police officers intentionally ignore Miranda, knowing that any statement obtained can be used for impeachment purposes pursuant to Harris v New York, 401 US 222, 225 (1971), or for other purposes consistent with the Miranda exceptions the Court has fashioned. See Transcript of Deputy District Attorney Devallis Rutledge, in Videotape: Questioning "Outside Miranda" (Greg Gulen Productions 1990), excerpted in Charles D. Weisselberg, Saving Miranda, 84 Cornell L Rev 109 at 189-92 (1998). There is simply no way to interpret Miranda as a decision permitting such questioning. To do so makes a mockery of the constitutional right at stake, but the Court's own treatment of Miranda has encouraged this sort of behavior. In addition to its general denigrations of Miranda, in Oregon v Hass, 420 US 714 (1975), the Court thought that questioning outside Miranda was a mere "speculative possibility." Id at 723. Even if that were true in 1975, it no longer is. See Richard A. Leo and Welsh S. White, Adapting to Miranda: Modern Interrogators' Strategies for Dealing with the Obstacles Posed by Miranda, 84 Minn L Rev 397, 460 (1999) (noting that "[a]t least two state courts have held that even statements obtained after an interrogator's deliberate misrepresentation as to the admissibility of the suspect's statement may be introduced for the purpose of impeachment," although one state court has ruled such statements inadmissible as a due process violation).
45. Louis Michael Seidman, Brown and Miranda, 80 Cal L Rev 672, 678 (1992).
46. For an instructive description, see Otis H. Stephens, Jr., The Supreme Court and Confessions of Guilt 165 (1973). See generally Fred P. Graham, The Self-inflicted Wound 245 (1970).
47. For an instructive description, see Otis H. Stephens, Jr., The Supreme Court and Confessions of Guilt 165 (1973). See generally Fred P. Graham, The Self-inflicted Wound 245 (1970).
48. See Yale Kamisar, Can (Did) Congress "Overrule" Miranda? 85 Cornell L Rev 883, passim (2000).
49. See id at 895.
50. 517 US 44 (1996) (holding that the Indian Commerce Clause does not grant Congress power to abrogate state's sovereign immunity).
51. 514 US 211 (1995) (broadly construing the principle that Congress cannot retroactively change the law applicable to a litigated case).
52. 521 US 507 (1997) (holding that Congress's power under Section 5 of the Fourteenth Amendment is strictly remedial and preventative).
53. 451 US 477 (1981).
54. See id at 484-85.
55. 417 US 433 (1974).
56. 470 US 298 (1985).
57. See id at 308; Tucker, 417 US at 450.
58. 401 US 222 (1971).
59. See id at 226.
60. 467 US 649 (1984).
61. See id at 655.
62. See Duckworth v Eagan, 492 US 195, 203 (1989); Connecticut v Barrett, 479 US 523, 528 (1987); Oregon v Elstad, 470 US 298, 305 (1985); New York v Quarles, 467 US 649, 654 (1984).
63. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
64. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
65. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
66. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
67. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
68. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
69. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
70. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
71. Most of the academic literature accepts the legitimacy of prophylaxis, with the debate focusing on how to justify it. See, e.g., Strauss, 550 Chi L Rev at 195 (cited in note 14) (equating prophylaxis with ordinary constitutional interpretation); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 949-63 (1999) (offering different justifications for different forms of prophylaxis); Monaghan, 89 Harv L Rev at 21 (cited in note 14) (viewing prophylaxis as a form of federal common law); Kamisar, 85 Cornell L Rev at 943 (cited in note 32) (accepting, arguendo, Monaghan's view, but distinguishing those aspects of Miranda that are constitutionally required); Huitema, 18 Yale L & Policy Rev at 265 (cited in note 15) (justifying prophylaxis addressed to risks of constitutional violations and activities that chill the exercise of constitutional rights). But see Grano, 80 Nw U L Rev 100 (cited in note 14) (rejecting the legitimacy of most prophylaxis); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174 (1988) (same). Some commentators also distinguish between prophylactic rules and per se rules. See Wayne R. LaFave, Jerold H. Israel, and Nancy King, Criminal Procedure §§ 2.9(d), 2.9(e) (2d ed 1999); Archibald Cox, The Role of Congress in Constitutional Determination, 40 U Cin L Rev 199, 250-52 (1971).
72. See United States v Calandra, 414 US 338, 348 (1974) (holding the exclusionary rule inapplicable to grand jury proceedings because it is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved."); Stone v Powell, 428 US 465 (1976) (for the same reason holding that habeas corpus relief is unavailable where state prisoner alleges that evidence was admitted in violation of the Fourth Amendment exclusionary rule); United States v Leon, 468 US 897 (1984) (for the same reason permitting admission of evidence obtained in good faith reliance on a defective warrant).
73. See Monaghan, 89 Harv L Rev 1 (cited in note 14).
74. Id at 2.
75. Id at 3.
76. See Strauss, 55 U Chi L Rev 190 (cited in note 14).
77. See generally id.
78. See id at 197.
79. See Grano, 80 Nw U L Rev 100 (cited in note 14).
80. See id at 157-62.
81. See id at 162-63.
82. Id at 163.
83. Compare Dorf, 112 Harv L Rev at 72 (cited in note 10) ("reflecting on the large role of doctrinal prophylaxis [in the Strauss approach] may lead us, by a seeming paradox, to discard the dichotomy of core versus prophylactic norms.").
84. We would apply the same approach to an often equally bewildering problem, that of constitutional remedies. Indeed, sometimes it is difficult even to tell whether what is being discussed is a prophylactic rule or a constitutional remedy. Is exclusion of a confession based on a Miranda violation an application of the prophylactic rule, a remedy for an earlier violation of the Miranda right, or both? All that is clear is that commentators perceive similar problems of authority and scope. For a sampling of work on the relationship between rights and remedies, see William C. Heffernan, Foreword: The Fourth Amendment Exclusionary Rule as Constitutional Remedy, 88 Geo L J 799 (2000); Richard H. Fallon, Jr. and Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv L Rev 1733 (1991); Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S Cal L Rev 735 (1992); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857 (1999). For a more comprehensive catalogue, see Friedman, supra, at 736 n.4.
85. We would apply the same approach to an often equally bewildering problem, that of constitutional remedies. Indeed, sometimes it is difficult even to tell whether what is being discussed is a prophylactic rule or a constitutional remedy. Is exclusion of a confession based on a Miranda violation an application of the prophylactic rule, a remedy for an earlier violation of the Miranda right, or both? All that is clear is that commentators perceive similar problems of authority and scope. For a sampling of work on the relationship between rights and remedies, see William C. Heffernan, Foreword: The Fourth Amendment Exclusionary Rule as Constitutional Remedy, 88 Geo L J 799 (2000); Richard H. Fallon, Jr. and Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv L Rev 1733 (1991); Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S Cal L Rev 735 (1992); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857 (1999). For a more comprehensive catalogue, see Friedman, supra, at 736 n.4.
86. We would apply the same approach to an often equally bewildering problem, that of constitutional remedies. Indeed, sometimes it is difficult even to tell whether what is being discussed is a prophylactic rule or a constitutional remedy. Is exclusion of a confession based on a Miranda violation an application of the prophylactic rule, a remedy for an earlier violation of the Miranda right, or both? All that is clear is that commentators perceive similar problems of authority and scope. For a sampling of work on the relationship between rights and remedies, see William C. Heffernan, Foreword: The Fourth Amendment Exclusionary Rule as Constitutional Remedy, 88 Geo L J 799 (2000); Richard H. Fallon, Jr. and Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv L Rev 1733 (1991); Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S Cal L Rev 735 (1992); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857 (1999). For a more comprehensive catalogue, see Friedman, supra, at 736 n.4.
87. We would apply the same approach to an often equally bewildering problem, that of constitutional remedies. Indeed, sometimes it is difficult even to tell whether what is being discussed is a prophylactic rule or a constitutional remedy. Is exclusion of a confession based on a Miranda violation an application of the prophylactic rule, a remedy for an earlier violation of the Miranda right, or both? All that is clear is that commentators perceive similar problems of authority and scope. For a sampling of work on the relationship between rights and remedies, see William C. Heffernan, Foreword: The Fourth Amendment Exclusionary Rule as Constitutional Remedy, 88 Geo L J 799 (2000); Richard H. Fallon, Jr. and Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv L Rev 1733 (1991); Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S Cal L Rev 735 (1992); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857 (1999). For a more comprehensive catalogue, see Friedman, supra, at 736 n.4.
88. We do not address whether other categories of cases now understood in prophylactic terms could be reconceptualized. See, e.g., Colter v Kentucky, 407 US 104, 116 (1972) (treating as prophylactic the Court's decision in North Carolina v Pearce, 395 US 711 (1969), which established a presumption of vindictiveness in cases in which a trial judge imposed a harsher sentence upon resentencing after a reversal than in the first instance).
89. Thus, Justice White, who dissented in Miranda, nonetheless forcefully defended its legitimacy in a speech before the chief justices of the state courts. See Justice Byron R. White, Recent Developments in Criminal Law, Address Before the Nineteenth Annual Meeting of the Conference of Chief Justices (Aug. 3, 1967), in Council of State Governments, Proceedings of the Nineteenth Annual Meeting of the Conference of Chief Justices (1967), quoted in Kamisar, 85 Cornell L Rev at 908-09 (cited in note 32).
90. Thus, Justice White, who dissented in Miranda, nonetheless forcefully defended its legitimacy in a speech before the chief justices of the state courts. See Justice Byron R. White, Recent Developments in Criminal Law, Address Before the Nineteenth Annual Meeting of the Conference of Chief Justices (Aug. 3, 1967), in Council of State Governments, Proceedings of the Nineteenth Annual Meeting of the Conference of Chief Justices (1967), quoted in Kamisar, 85 Cornell L Rev at 908-09 (cited in note 32).
91. Thus, Justice White, who dissented in Miranda, nonetheless forcefully defended its legitimacy in a speech before the chief justices of the state courts. See Justice Byron R. White, Recent Developments in Criminal Law, Address Before the Nineteenth Annual Meeting of the Conference of Chief Justices (Aug. 3, 1967), in Council of State Governments, Proceedings of the Nineteenth Annual Meeting of the Conference of Chief Justices (1967), quoted in Kamisar, 85 Cornell L Rev at 908-09 (cited in note 32).
92. The first case in which the Court hinted at any obligation on the state to provide appointed counsel was Powell v Alabama, 287 US 45 (1932), and even there the defendants' ignorance, the capital charge, and the potential availability of retained counsel all suggest an extremely limited right.
93. 316 US 455 (1942).
94. Id at 473 ("while want of counsel in a particular case may result in a conviction lacking in . . . fundamental fairness, we cannot say that the [Fourteenth] Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.").
95. 372 US 335 (1963). See also Argersinger v Hamlin, 407 US 25 (1972) (finding a right to counsel in misdemeanor and petty cases for which the defendant is imprisoned); Scott v Illinois, 440 US 367 (1979) (finding no right to counsel where state statute authorizes punishment of imprisonment but imprisonment is not imposed); David A. Strauss, Common Law, Common Ground, and Jefferson's Principle (manuscript on file with authors), at 30 (noting mere coincidence between the language of the Sixth Amendment and the rule of Gideon v Wainwright, 372 US 335 (1963)).
96. A variety of theories exist that seek to legitimize the evolution of constitutional rules, but no matter what the relative merits of these theories, the fact of evolution is impossible to deny. For a sampling of the relevant theories, see Bruce Ackerman, 1 We the People: Foundations (1991) (constitutional moments); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo L J 1765 (1997) (pragmatic eclecticism); Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U Pa L Rev 1 (1998) (development through experience over time); Larry Kramer, Fidelity to History - and Through It, 65 Fordham L Rev 1627 (1997) (same); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395 (1995) (translation); David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 884 (1996) (common law development).
97. A variety of theories exist that seek to legitimize the evolution of constitutional rules, but no matter what the relative merits of these theories, the fact of evolution is impossible to deny. For a sampling of the relevant theories, see Bruce Ackerman, 1 We the People: Foundations (1991) (constitutional moments); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo L J 1765 (1997) (pragmatic eclecticism); Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U Pa L Rev 1 (1998) (development through experience over time); Larry Kramer, Fidelity to History - and Through It, 65 Fordham L Rev 1627 (1997) (same); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395 (1995) (translation); David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 884 (1996) (common law development).
98. A variety of theories exist that seek to legitimize the evolution of constitutional rules, but no matter what the relative merits of these theories, the fact of evolution is impossible to deny. For a sampling of the relevant theories, see Bruce Ackerman, 1 We the People: Foundations (1991) (constitutional moments); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo L J 1765 (1997) (pragmatic eclecticism); Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U Pa L Rev 1 (1998) (development through experience over time); Larry Kramer, Fidelity to History - and Through It, 65 Fordham L Rev 1627 (1997) (same); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395 (1995) (translation); David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 884 (1996) (common law development).
99. A variety of theories exist that seek to legitimize the evolution of constitutional rules, but no matter what the relative merits of these theories, the fact of evolution is impossible to deny. For a sampling of the relevant theories, see Bruce Ackerman, 1 We the People: Foundations (1991) (constitutional moments); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo L J 1765 (1997) (pragmatic eclecticism); Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U Pa L Rev 1 (1998) (development through experience over time); Larry Kramer, Fidelity to History - and Through It, 65 Fordham L Rev 1627 (1997) (same); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395 (1995) (translation); David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 884 (1996) (common law development).
100. A variety of theories exist that seek to legitimize the evolution of constitutional rules, but no matter what the relative merits of these theories, the fact of evolution is impossible to deny. For a sampling of the relevant theories, see Bruce Ackerman, 1 We the People: Foundations (1991) (constitutional moments); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo L J 1765 (1997) (pragmatic eclecticism); Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U Pa L Rev 1 (1998) (development through experience over time); Larry Kramer, Fidelity to History - and Through It, 65 Fordham L Rev 1627 (1997) (same); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395 (1995) (translation); David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 884 (1996) (common law development).
101. A variety of theories exist that seek to legitimize the evolution of constitutional rules, but no matter what the relative merits of these theories, the fact of evolution is impossible to deny. For a sampling of the relevant theories, see Bruce Ackerman, 1 We the People: Foundations (1991) (constitutional moments); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo L J 1765 (1997) (pragmatic eclecticism); Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U Pa L Rev 1 (1998) (development through experience over time); Larry Kramer, Fidelity to History - and Through It, 65 Fordham L Rev 1627 (1997) (same); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395 (1995) (translation); David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 884 (1996) (common law development).
102. 168 US 532 (1897).
103. See, e.g., Edwards v Arizona, 451 US 477, 481 ("Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.").
104. See Dickerson, 120 S Ct at 2334 n 5 (citing Withrow v Williams, 507 US 680, 691 (1993); Illinois v Perkins, 496 US 292, 296 (1990); Butler v McKellar, 494 US 407, 411 (1990); Michigan v Jackson, 475 US 625, 629 (1986); Moran v Burbine, 475 US 412, 427 (1986); Edwards, 451 US at 481-82).
105. Miranda, 384 US at 478-79.
106. 417 US 433 (1974). See also Oregon v Elstad, 470 US 298, 308 (1985) (treating Tucker as holding that fruit of poisonous tree doctrine does not apply to Miranda violations). 73 Dickerson, 120 S Ct at 2334 (quoting Miranda).
107. See Schneckloth v Bustamonte, 412 US 218 (1973).
108. See Johnson v Zerbst, 304 US 458, 464 (1938); see also Schneckloth, 412 US at 235 (distinguishing between waiver of trial rights and other situations in which a person may fail to invoke "a constitutional protection").
109. Donald Dripps engages in a similar endeavor, arguing that all of the cases relying on a "prophylactic" interpretation of Miranda can be squared with the decision itself. See Donald Dripps, Miranda Caselaw Really Inconsistent? A Proposed Fifth Amendment Synthesis, 17 Const Comm 19 (2000). While we are not persuaded that Dripps succeeds in squaring all of the cases with Miranda, his endeavor is the correct one.
110. New York v Quarks, for example, held that a Miranda violation is excused if the public safety demands that a subject be questioned immediately without
111. Michigan v Tucker is a good example. If Miranda is a constitutional rule, and if in fact it violates the Constitution to fail to warn a suspect of the right to remain silent, then it is difficult to see how we can avoid excluding the fruits of unwarned statements. To be sure, if one thought that unlawfully coercive interrogation completed a Miranda violation in the way that an illegal search completes a Fourth Amendment violation, one might also think that neither suppression of the confession nor its fruits is constitutionally required. A damages remedy might suffice. However, in assuming that Miranda's core is a constitutional rule, we have been assuming that the core includes the right to suppression of a confession obtained in violation of Miranda. If that is so, there appears to be no good reason to distinguish the confession from its fruits. One might question why it necessarily follows that the fruits of constitutional violations must be excluded, but the proper focus of attention is on the relationship between the violation and the fruit, not on some wholesale rule. The confession obtained from a tortured suspect is "just" the fruit of the violation. So is the witness discovered through that same torture, and the buried murder weapon (whether located from the suspect's testimony or from that of the witness the suspect identified). The Supreme Court's doctrine accounts for these distinctions by, inter alia, permitting the introduction of evidence if the causal chain between government misconduct and the evidence has been attenuated, see Wong Sun v United States, 371 US 471 (1963), or if the fruit is evidence likely to have been discovered anyway, see Nix v Williams, 467 US 431 (1984). We do not mean to endorse any particular decision regarding the fruit of the poisonous tree doctrine; our point is that those doctrines should be applied consistently when a constitutional violation is at stake.
112. A good example is Harris v New York, which held that statements inadmissible in a case-in-chief because of a Miranda violation can nonetheless be admitted for impeachment purposes. See 401 US 222, 226 (1970). Whether a balancing of the interest in preventing perjury against the Fifth Amendment right justifies the rule most likely will have to be decided on a case-by-case basis if it applies at all. See id at 225-26 (discussing competing value of excluding perjury). Oregon v Elstad presents another thorny problem. See 470 US 298 (1985). Elstad held that if a suspect made a statement in violation of Miranda, a subsequent statement made shortly thereafter is admissible if Miranda warnings are administered before the second statement and the first statement is not involuntary. See id at 314. But that decision becomes difficult to justify in light of Brown v Illinois's holding that the Miranda warnings are not talismanic. See Brown v Illinois, 422 US 590, 603 ("Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession."). Given that the Fifth Amendment is in part about a concern for voluntariness, it is difficult to understand why administering the warnings would be talismanic for Fifth Amendment purposes, but not so for the Fourth Amendment. Elstad perhaps could be explained, but Justice O'Connor's opinion for the Court relies on the nonconstitutional understanding of Miranda, and that will not wash. See Elstad, 470 US at 306 (stating that the Miranda exclusionary rule "sweeps more broadly than the Fifth Amendment itself").
113. One candidate for further explanation under the narrowed interpretation of Miranda is Edwards v Arizona, holding that once the Fifth Amendment "right" to counsel is invoked, the suspect cannot even be questioned following a second set of warnings by different officers as to a different offense. See 451 US 477, 484-45 (1981). Because the Fifth Amendment, like the Sixth Amendment, tends to be treated as offense-specific, some more reasoning is necessary to maintain the Edwards holding. Perhaps the Court could provide such an explanation, but it has not done so.
114. See Massiab v United States, 377 US 201 (1964); Brewer v Williams, 430 US 387 (1977).
115. See Kamisar, 85 Cornell L Rev at 912 (cited in note 32).
116. 384 US at 442.
117. Id at 441-42 (emphasis added).
118. Id at 444.
119. Id at 444-45 (emphasis added).
120. See id at 467.
121. See id at 478-79, 490.
122. See Texas v Johnson, 491 US 397 (1989).
123. See Flag Protection Act of 1989, 103 Stat 777, codified at 18 USCA § 700 (Supp 1990).
124. See United States v Eichman, 496 US 310 (1990).
125. 358 US 1 (1958).
126. 410 US 113 (1973).
127. 3 84 US at 490.
128. While the videotaping of confessions will in the vast run of cases be enough to assure that both the Miranda and voluntariness components of the Fifth Amendment are met, there may be cases that require further elaboration of the statute or the constitutional rule. Perhaps the Court will find that a defendant subjected to hours and hours of interrogation could not have exercised free will. Perhaps the Court will conclude from a particular videotape that the process of interrogation so strained the suspect that he or she was not sufficiently of right mind to confess. Perhaps gaps in the videotape or the chronology from the time of arrest to the time of an incriminating statement will suggest that the police engaged in illegal practices when the machine was not recording. See Stephan v State, 711 P2d 1156, 1164 (Alaska 1985) (excluding the defendant's statement where "a police officer, in his own discretion, chose to turn the recorder on twenty minutes into the interview rather than at the beginning"); Wayne T. Westling and Vicki Waye, Videotaping Police Interrogations: Lessons from Australia, 25 Am J Grim L 493, 533-34 (1998) (describing the Australian experience).
129. See Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw U L Rev 387, 487 (1996) ("Videotaping interrogations would certainly be as effective as Miranda in preventing police coercion and probably more so."). Of course, nothing in Miranda prevents federal or state officials from videotaping confessions in addition to providing counsel and all of the standard warnings. See Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw U L Rev 501, 556 (1996). By enacting ACECIA Congress would be making a judgment that videotaping should substitute for, rather than supplement, a right to counsel and the accompanying warnings. Compare Philip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 Am Crim L Rev 303, 306, 313 (1987) (proposing audiotaping or videotaping as a recommended measure, possibly to be made mandatory after a period of study).
130. See Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw U L Rev 387, 487 (1996) ("Videotaping interrogations would certainly be as effective as Miranda in preventing police coercion and probably more so."). Of course, nothing in Miranda prevents federal or state officials from videotaping confessions in addition to providing counsel and all of the standard warnings. See Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw U L Rev 501, 556 (1996). By enacting ACECIA Congress would be making a judgment that videotaping should substitute for, rather than supplement, a right to counsel and the accompanying warnings. Compare Philip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 Am Crim L Rev 303, 306, 313 (1987) (proposing audiotaping or videotaping as a recommended measure, possibly to be made mandatory after a period of study).
131. See Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw U L Rev 387, 487 (1996) ("Videotaping interrogations would certainly be as effective as Miranda in preventing police coercion and probably more so."). Of course, nothing in Miranda prevents federal or state officials from videotaping confessions in addition to providing counsel and all of the standard warnings. See Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw U L Rev 501, 556 (1996). By enacting ACECIA Congress would be making a judgment that videotaping should substitute for, rather than supplement, a right to counsel and the accompanying warnings. Compare Philip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 Am Crim L Rev 303, 306, 313 (1987) (proposing audiotaping or videotaping as a recommended measure, possibly to be made mandatory after a period of study).
132. See generally Harold J. Krent, How to Move Beyond the Exclusionary Rule: Structuring Judicial Response to Legislative Reform Efforts, 26 Pepperdine L Rev 855, 871-74 (1999) (discussing Supreme Court evaluation of a similar question - alternative remedies to exclusion under the Fourth Amendment - in the context of specific cases). Although the ultimate determination regarding any set of procedures would thus await concrete cases, declaratory relief should be liberally available to ensure that government officials do not engage in widespread illegal activity and to assure those same officials that a proposed set of alternative safeguards will not be ruled categorically inadequate. See Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum L Rev 267, 462-64 (1998) (urging a variant on the latter to avoid stifling experimentation by governments fearful of judicial overturning of convictions).
133. See generally Harold J. Krent, How to Move Beyond the Exclusionary Rule: Structuring Judicial Response to Legislative Reform Efforts, 26 Pepperdine L Rev 855, 871-74 (1999) (discussing Supreme Court evaluation of a similar question - alternative remedies to exclusion under the Fourth Amendment - in the context of specific cases). Although the ultimate determination regarding any set of procedures would thus await concrete cases, declaratory relief should be liberally available to ensure that government officials do not engage in widespread illegal activity and to assure those same officials that a proposed set of alternative safeguards will not be ruled categorically inadequate. See Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum L Rev 267, 462-64 (1998) (urging a variant on the latter to avoid stifling experimentation by governments fearful of judicial overturning of convictions).
134. Compare Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 NYU L Rev 1185, 1198-1205 (1992) (making the same point with respect to Roe). 99 Obviously the statutory rule would fail if the confession were taken after the Sixth Amendment right to counsel attached. And admittedly there is ambiguity in the case law -from Escobedo v State of Illinois if not before - as to whether there is an independent right to counsel in the custodial interrogation setting. See 378 US 478 (1964). Some of the continuing ambiguity arises from the fact "that Miranda did not build on the approach taken in Escobedo as much as it displaced it."
135. Kamisar, 85 Cornell L Rev at 885 n 3 (cited in note 32) (emphasis in original).
136. Those readers who are skeptical that Congress would ever pass a statute that seems to extend a new right to suspects may wish to imagine further that NACA responds to some widely publicized police scandal or is packaged with other measures that crack down on crime.
137. In NLRB v Jones & Laughlin Steel Corp., 301 US 1 (1937), the Court upheld the National Labor Relations Act of 1935. As the four dissenters noted, in affirming Congress's power to regulate manufacturing, the Court departed from a stricter view of the Commerce Clause that had prevailed earlier in the century. See NLRB v Friedman-Harry Marks Clothing Co., 301 US 58, 78 (1937) (McReynolds dissenting from decisions in several cases) (objecting to federal regulation of "purely local industry beyond anything heretofore deemed permissible."). The Court did not again strike down a law as beyond the scope of the Commerce Clause until its decision in United States v Lopez, 514 US 549 (1995).
138. See, e.g., Katzenbach v McClung, 379 US 294 (1964); Heart of Atlanta Motel, Inc. v United States, 379 US 241 (1964).
139. See, e.g., Laurence H. Tribe, American Constitutional Law 313 (2d ed 1988) ("The doctrinal rules courts currently employ to determine whether federal legislation is affirmatively authorized under the commerce clause do not themselves effectively limit the power of Congress.").
140. 514 US 549 (1995).
141. 120 S Ct 1740 (2000).
142. There are two other branches of the commerce power: the regulation of the "channels" and "instrumentalities" of interstate commerce, neither of which was applicable in Lopez, see id at 559, and neither of which is applicable here.
143. United States v Morrison, 120 S Ct 1740, 1750 (2000) (citing Lopez, 514 US at 559-60). Lopez may have made sense as an attempt to define the permissible boundaries of congressional regulation under its enumerated powers, but Morrison - at least as it was written - signals a regrettable return to pre-1937 formalism. Moreover, Morrison seems in some ways an attempt by the Chief Justice to resuscitate his opinion in 1976 in National League of Cities v Usery, 426 US 833 (1976). That would be unfortunate, given that the constitutional structure does seem to imply an attempt to define enumerated powers, whereas National League of Cities' notion of a traditional state function, see id at 849-52, finds no place in the Constitution. See Thomas R. McCoy and Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 Supreme Court Review 85, 114 (1988).
144. 384 US 641 (1966).
145. See id at 649 (distinguishing Lassiter v Northampton Election Bd., 360 US 45 (1959)).
146. See Morgan, 384 US at 648-49.
147. Id at 651.
148. See William Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 Stan L Rev 603, 613 (1975); Douglas Laycock, RFRA, Congress, and the Ratchet, 56 Mont L Rev 145, 152-69 (1995); Matt Pawa, Comment: When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment, 141 U Pa L Rev 1029, 1062-69 (1993); Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1230 (1978).
149. See William Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 Stan L Rev 603, 613 (1975); Douglas Laycock, RFRA, Congress, and the Ratchet, 56 Mont L Rev 145, 152-69 (1995); Matt Pawa, Comment: When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment, 141 U Pa L Rev 1029, 1062-69 (1993); Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1230 (1978).
150. See William Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 Stan L Rev 603, 613 (1975); Douglas Laycock, RFRA, Congress, and the Ratchet, 56 Mont L Rev 145, 152-69 (1995); Matt Pawa, Comment: When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment, 141 U Pa L Rev 1029, 1062-69 (1993); Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1230 (1978).
151. See William Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 Stan L Rev 603, 613 (1975); Douglas Laycock, RFRA, Congress, and the Ratchet, 56 Mont L Rev 145, 152-69 (1995); Matt Pawa, Comment: When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment, 141 U Pa L Rev 1029, 1062-69 (1993); Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1230 (1978).
152. 392 US 409 (1968).
153. See Katzenbach v Morgan, 384 US 641, 653-56 (1966).
154. See EEOC v Wyoming, 460 US 226, 262 (1983) (Burger dissenting) ("Allowing Congress to protect constitutional rights statutorily that it has independently defined fundamentally alters our scheme of government."); Oregon v Mitchell, 400 US 112, 205 (1970) (Harlan concurring in part and dissenting in part); id at 296 (Stewart concurring in part and dissenting in part).
155. See Boerne, 521 US at 519-29.
156. 521 US 507 (1997).
157. Pub L No 103-141, 107 Stat 1488 (1993), codified at 42 USC § 2000bb (1994).
158. See Employment Div. v Smith, 494 US 872 (1990).
159. See Boerne, 521 US at 518 ("Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into 'legislative spheres of autonomy previously reserved to the States.'" (quoting Fitzpatrick v Bitzer, 427 US 445, 455 (1976)).
160. Boerne, 521 US at 519.
161. 17 US (4 Wheat) 316, 421 (1819).
162. Id at 421.
163. See Jones v Alfred H. Mayer Co., 392 US 409, 443-44 (1968) (Thirteenth Amendment); South Carolina v Katzenbach, 383 US 301, 326 (1966) (Fifteenth Amendment); City of Rome v United States, 446 US 156, 175 (1980) (Fifteenth Amendment).
164. See Morrison, 120 S Ct 1740 (2000); Kimel v Florida Bd. of Regents, 120 S Ct 631 (2000); Florida Prepaid Postsecondary Educ. Expense Bd. v College Savings Bank, 527 US 627 (1999); Boerne, 521 US 507.
165. Contrasting Boerne with a Fifteenth Amendment case, City of Rome v United States, 446 US 156 (1980), suggests that congruence and proportionality is a stricter test than necessary and proper. In Rome, as in Boerne, Congress sought to substitute what could be described as a disparate impact test for a judicially mandated purposeful discrimination test. Applying the necessary- and-proper test, the Court deferred to Congress's chosen means in Rome; applying the congruence and proportionality test, the Court invalidated Congress's handiwork in Boerne. See Laurence H. Tribe, 1 American Constitutional Law 933-36 (3d ed 1999). Is the Court justified in applying a stricter standard of review to legislation under Section 5 of the Fourteenth Amendment than under the other Civil War Amendments (not to mention Congress's powers under Article I, Section 8)? One might reconcile the cases by noting that, unlike the Fourteenth Amendment Section 5 power, the power to enforce the Fifteenth Amendment does not pose a risk of becoming a plenary power. The Fifteenth Amendment is limited to a much narrower subject matter - race discrimination in voting -than the Fourteenth Amendment. Hence, it could be argued, the Court can afford to grant Congress greater deference under the Fifteenth Amendment than under the Fourteenth. Although this line of argument may work for the Fifteenth Amendment, it does not work for the Thirteenth Amendment. Under Jones, "Congress is free, within the broad limits of reason, to recognize whatever rights it wishes, define the infringement of those rights as a form of domination or subordination and thus an aspect of slavery, and proscribe such infringement as a violation of the Thirteenth Amendment." Tribe, 1 American Constitutional Law at 927 (cited above). And because the Thirteenth Amendment contains no state action requirement, this means that "Congress would possess nearly plenary authority under the Thirteenth amendment to protect all but the most trivial individual rights from both governmental and private invasion." Id. Accordingly, the difference in wording and subject matter among the Thirteenth, Fourteenth, and Fifteenth Amendments does not justify the narrower approach that the Court has lately taken toward the Fourteenth. Nonetheless, we do not mean to suggest that die Civil War Amendment cases are strictly irreconcilable with one another. For example, one could think that Boerne and Rome are both rightly decided. Given our nation's long history of racial discrimination in voting, in 1965 (the date of passage of the Voting Rights Act), it was entirely plausible for Congress to conclude that many or most changes in voting rules that have a disparate racial impact are in fact motivated by official racial animus, even if specific proof of such animus is unavailable in particular cases. By contrast, in 1993 (the date of passage of the Religious Freedom Restoration Act), Congress had no reason to believe that any but a tiny handful of the generally applicable laws that, from time to time, impose substantial burdens on the free exercise of religion were adopted out of religious animus. The Boerne Court itself appeared to endorse this distinction between race and religion. See, e.g., Boerne, 521 US at 531 ("In contrast to the record which confronted Congress and the judiciary in the voting rights cases, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years."). Thus, the different outcomes in Rome and Boerne could be taken to mean that the Court applied a consistent standard of review, which the Voting Rights Act satisfied and the Religious Freedom Restoration Act did not. The outcomes alone do not logically entail that the Court applied different standards. 127 527 US 627 (1999).
166. See id at 642.
167. See id at 642-43 (citing Zinermon v Burch, 494 US 113, 125 (1990); Parratt v Taylor, 451 US 527, 539-31 (1981); Hudson v Palmer, 468 US 517, 532-53 (1984); id at 539 (O'Connor concurring). As the dissent observed, these cases only establish that negligent deprivations of property do not violate the Due Process Clause if there is an adequate state postdeprivation remedy; a willful deprivation is a completed Due Process violation at the moment it occurs. See Florida Prepaid, 527 US at 653 (Stevens dissenting) (citing Daniels v Williams, 474 US 327, 332-34 (1986)).
168. See id at 643-44.
169. See Tribe, 1 American Constitutional Law at 958 (cited in note 126).
170. Id at 959.
171. 120 S Ct 631 (2000).
172. In Kimel the Court held that the Age Discrimination in Employment Act (ADEA) could not be justified under the Section 5 power. Age discrimination, in the Court's view, is unconstitutional only if irrational, and Congress had identified no pattern of age discrimination, much less a pattern of irrational age discrimination. See id at 649. In this respect, the ADEA was plausibly understood as an illicit attempt by Congress to treat age as a suspect classification in the face of judicial decisions holding that it is not. See Gregory v Asbcroft, 501 US 452, 473 (1991); Vance v Bradley, 440 US 93, 102-03 (1979); Massachusetts Board of Retirement v Murgia, 427 US 307, 317 (1976) (per curiam). To be sure, age discrimination, like most forms of discrimination, is subject to mere rational basis scrutiny out of deference to Congress and state legislatures. By reserving heightened scrutiny for the most invidious forms of discrimination, the Court leaves room for the operation of the democratic process. Arguably, a parallel principle of respect for a coordinate branch of government should mean that Congress is also entitled to deference when it determines that age discrimination is sufficiently invidious to warrant a legislative solution. But this argument leads ultimately to the very substantive ratchet theory that Boerne rejected, and thus it is not surprising that the Kimel Court (implicitly) rejected the argument.
173. By contrast with Florida Prepaid, in neither Kimel nor Boerne was there any dissent from the application of the congruence and proportionality test itself. In Boerne, the dissenters objected to the Court's interpretation of the Free Exercise Clause, rather than its insistence that Congress had gone beyond that interpretation. Boerne, 521 US at 544-45 (O'Connor dissenting); id at 565 (Souter dissenting); id at 566 (Breyer dissenting). In both Florida Prepaid and Kimel, Justices Stevens, Souter, Ginsburg, and Breyer objected to the doctrine, first announced in Seminole Tribe, that permits Congress to abrogate state sovereign immunity when acting pursuant to the Section 5 power but not when acting pursuant to its Article I powers. But only in Florida Prepaid did these same four Justices object further to the way in which the majority applied the congruence and proportionality test. In Morrison v United States, the Court held that Section 5 did not authorize the provision of the Violence Against Women Act that created a federal civil remedy for victims of gender-motivated violence. 120 S Ct 1740 (2000). The Court relied mainly on nineteenth-century precedents invalidating Acts of Congress that sought to regulate private conduct pursuant to Section 5. See id at 1756 (discussing United States v Harris, 106 US 629 (1883) and the Civil Rights Cases, 109 US 3 (1883)). The Court then rejected the claim that Congress had provided a right of action against private actors as the means by which persons who would otherwise face official discrimination in state courts could circumvent that constitutional wrong. See id at 1758-59. Two of the dissenters did not reach the Section 5 question, as they would have sustained the law under the Commerce Clause. Justice Breyer, writing for himself and Justice Stevens, expressed doubt about the soundness of the Court's Section 5 analysis, see id at 1778-80 (Breyer dissenting), although not about the congruence and proportionality test itself. See id at 1779 (distinguishing Boerne). 136 Accord Robert C. Post and Reva B. Siegel, The Uncertain Future of Federal Antidiscrimination Law: Morrison, Kimel, and the Dismantling of Congressional Section 5 Powers 2 (draft on file with authors) ("This silence is remarkable.").
174. Morrison, 120. S Ct at 1759 (contrasting VAWA with statutes "directed only to the State where the evil found by Congress existed"); Florida Prepaid, 120 S Ct at 646-47 ("Congress did nothing to . . . confine the reach of the Act by . . . providing for suits only against States with questionable remedies or a high incidence of infringement.").
175. Contrast RFRA, in which Congress thought that substantial burdens on religion imposed by generally applicable laws were (unconstitutional) harms in themselves.
176. Furthermore, Florida Prepaid may be less of an obstacle than it at first appears. Notwithstanding the Court's acknowledgment that patents are property for purposes of the Due Process Clause, in Florida Prepaid as in the other recent Section 5 cases, one senses that the Court viewed Congress as attempting to evade limits the Court had set. A law granting remedies for patent infringement is, in some intuitive sense, most clearly an exercise of Congress's Article I powers, see US Const, Art I, § 8, cl 8, bearing at best a tangential relationship to the Civil War Amendments. Having decided (quite erroneously in our view) that Congress may abrogate state sovereign immunity when acting pursuant to its power to enforce the Civil War Amendments but not its Article I powers, see Seminole Tribe, the Florida Prepaid Court was understandably reluctant to permit Congress to treat what looked like an Article I matter as falling within the Section 5 power. On this view, the Court was right (within its own erroneous assumptions) to see the Patent Remedy Act as incongruent with and disproportionate to a Fourteenth Amendment violation, even if the Court - in a now all too familiar move - chose to explain why in a way that aggrandized its own power at the expense of Congress.
177. Dickerson, 120 S Ct at 2345.
178. What other statutes would be authorized under the Court's view of Section 5 remains an open question. For example, in Zurcher v Stanford Daily, 436 US 547 (1978), the Court held that neither the First Amendment nor the Fourth Amendment requires any heightened showing of need by law enforcement in order to obtain a warrant to search a newspaper's premises for evidence of third-party wrongdoing. Congress responded by enacting the Privacy Protection Act of 1980, 42 USC § 2000aa, which affords the institutional media and their employees with protection against searches and seizures beyond what the Constitution (as interpreted in Zurcher) requires. As a regulation of law enforcement officials rather than the media, the Act may fall outside the scope of the Commerce Clause, and as an apparent attempt to expand the Court's definition of the substantive right protected by the Fourth Amendment, the Act may likewise exceed the Section 5 power.
179. NACECIA would not pass muster under the Commerce Clause for the same basic reason that NACA would not: the regulated activity is not economic activity. Both Lopez and Morrison clearly reject the claim that a law designed to cut crime is, ipso facto, a regulation of interstate commerce.
180. See, e.g., Crosby v National Foreign Trade Council, 120 S Ct 2288 (2000) (economic sanctions for human rights abuses by foreign government); United States v Locke, 120 S Ct 1135 (2000) (oil tanker regulations); City of Burbank v Lockheed Air Terminal, Inc., 411 US 624 (1973) (aircraft noise).
181. For simplicity, this section only considers NACA. 145 See New York v United States, 505 US 144 (1992) (holding that Congress may not direct the states to enact legislation); Printz v United States, 521 US 898 (1997) (holding that Congress may not compel state executive officers to carry out federal law).
182. 505 US 144 (1992).
183. 521 US 898 (1997).
184. Id at 932.
185. 120 S Ct 666 (2000).
186. 18 USC §§ 2721-25.
187. Reno v Condon, 120 S Ct 666, 672 (2000).
188. Id (quoting South Carolina v Baker, 485 US 505, 514-15 (1988)).
189. Indeed, the Condon Court itself recognized that the imposition of affirmative obligations on the states is "an inevitable consequence of regulating a state activity." 120 S Ct at 672 (quoting South Carolina v Baker, 485 US 505, 514 (1988) (internal quotation marks omitted)). See also Matthew D. Adler and Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1988 Supreme Court Review 71, 95-102 (1998).
190. Current doctrine also suggests that Congress could impose NACA as a conditional exercise of the spending power, see New York, 505 US at 167 (distinguishing commandeering from conditional spending), although it remains to be seen whether this power will survive the New York/Printz line of cases. Compare Printz, 521 US at 918 ("We of course do not address [statutes that arguably utilize conditional spending]; it will be time enough to do so if and when their validity is challenged in a proper case.").
191. We do not contend that there is some general federal power to fashion rules of evidence or procedure for state courts. Our claim is far more limited: If a rule of law falls within the scope of one of Congress's enumerated powers, requiring state courts to comply with it is not independently objectionable on federalism grounds. 156 See, e.g., Brown v Mississippi, 297 US 278 (1936); Chambers v Florida, 309 US 227 (1940); Ward v Texas, 316 US 547 (1942).
192. 376 US 254 (1964).
193. See id at 279-80 (imposing "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.").
194. 330 US 386 (1947). According to the Printz Court, Testa is consistent with the anti-commandeering rule because state courts differ from state executives and state legislatures in two crucial respects. First, the literal language of the Supremacy Clause binds state judges to federal law. See Printz, 521 US at 928-29. Second, the Madisonian compromise, under which Congress was free to create no lower federal courts, meant that the Framers contemplated assigning some federal tasks to state court judges. See id at 907. We have doubts whether these points sufficiently distinguish Testa from New York and Printz, but as we explain in the text, that is irrelevant to the present discussion, as the validity of a federal rule of inadmissibility applicable in state court does not rest on the Testa power.
195. 5 USC § App 501 et seq.
196. See 5 USC § App 511(4).
197. Pub L No 90-351, 82 Stat 212, codified at 18 USC §§ 2510-22 (1994 & Supp IV 1998).
198. See 18 USC § 2515.
199. See 18 USC § 2511.
200. See, e.g., United States v Liddy, 354 F Supp 217 (DDC 1973).
201. See, e.g., United States v Grice, 37 F Supp 2d 428 (D S Car 1998) (applying exclusionary remedy in accordance with the Act's plain language).
202. NACECIA is a different story, however. There is no plausible way to phrase the attorney ban as an exclusionary rule.
203. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
204. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
205. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
206. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
207. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
208. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
209. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
210. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv L Rev 1131 (1999) (positive rights under state constitutions); Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va L Rev 389 (1998) (examining justifications for independent state constitutional law); James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761 (1992) (acknowledging the trend but criticizing its legitimacy). The trend was sparked in part by a plea from Justice Brennan, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977), who later applauded state courts' willingness to protect civil liberties to a greater extent than the U.S. Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986). See also Judith S. Kaye, Dual Constitutionalism in Practice and Principle, in 3 Benjamin N. Cardozo Memorial Lectures 1401, 1415 (1995). The movement has not been all in one direction, however. For example, the Florida Constitution protects against unreasonable searches and seizures as well as excessive punishments, but both provisions now contain express limitations diat prevent the Florida courts from interpreting them more liberally than the U.S. Supreme Court interprets their federal counterparts. See FIa Const Art I, §§ 12, 17. See also Cal Const Art I, § 24 ("This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States."). As a matter of judicial practice, other states follow nearly the same course, see Gardner, 90 Mich L Rev at 788-90 (cited above) (discussing Massachusetts, Virginia, and Louisiana cases). For a defense of this "lockstep" approach, see Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 Annals Am Acad Pol & Soc Sci 98, 99 (1988).
211. Stephan v State, 711 P2d 1156, 1157 (Alaska 1985). This doctrine is not, strictly speaking, a response to the Miranda Court's invitation to develop alternative safeguards, because Alaska does not treat videotaping as a substitute for the right to counsel. It treats videotaping as a wholly additional requirement under Alaska law. See id at 1160.
212. See State v Scales, 518 NW 2d 587, 592 (1994).
213. This same logic suggests that localities - including the major metropolitan police forces most involved in custodial interrogation - also ought to be free to devise their own alternative safeguards. 172 If the Court first upheld the federal ACECIA, a question would arise as to whether states, in enacting their own ACECIAs, would be permitted to ride piggy-back on that judgment. Compare Richmond v J. A. Croson, 488 US 469, 504-06 (1989) (finding Richmond's invocation of Congressional findings with respect to the national market inadequate to support a local affirmative action program) with id at 546-48 (Marshall dissenting) (arguing that Richmond should have been permitted to rely on Congressional findings).
214. See Morrison, 120 S Ct at 1752 ("[T]he existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation."); Lopez, 514 US at 557 n 2 (quoting Hodel v Virginia Surface Mining & Reclamation Assn., Inc., 452 US 264, at 311 (1981) (Rehnquist concurring in judgment)) ("Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.").
215. See New State Ice Co. v Liebmann, 285 US 262, 311 (1932) (Brandeis dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."). See also Barry Friedman, Valuing Federalism, 82 Minn L Rev 317, 397-401 (1997);
216. Larry Kramer, Understanding Federalism, 47 Vand L Rev 1485, 1499 (1994) (arguing that capital and taxpayers act as incentives for local governments to experiment);
217. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U Chi L Rev 1484, 1498-1500 (1987) (book review) (exploring economic arguments underlying state innovation).
218. See David L. Shapiro, Federalism: A Dialogue 85-88 (1995).
219. See, e.g., Wolf v Colorado, 338 US 25 (1949); Palko v Connecticut, 302 US 319 (1937).
220. The conclusion that a state ACECIA would be no less valid than a federal ACECIA may also vindicate our decision to sidestep the debate over the legitimacy of constitutional common law that envelopes so much academic discussion of Miranda; for that conclusion illustrates that the term "constitutional common law" is a misnomer when applied to describe the Court's requirement of the Miranda warnings. The term "common law" captures the idea of judge-made law that is subject to legislative revision. However, at least since Erie R. Co. v Tompkins, 304 US 64 (1938), it has been understood that common law is the law of a particular jurisdiction. If constitutional common law were really common law in this sense, it would clearly be federal common law - in which case it would be revisable by Congress alone, for state legislatures have no power to create federal law. Yet, as we have seen, the Miranda warnings should be revisable by the states no less than by Congress. See Dorf and Sabel, 98 Colum L Rev at 454-55 (cited in note 97). The term constitutional common law is misleading in a second way as well. True common law can be altered at will by the legislature. If, for example, a state high court recognizes a novel cause of action, the state legislature can wholly
221. See note 171. The Framers' willingness to rely on state courts to protect individual rights was reflected in the Madisonian compromise. See note 162; Atlantic Coast Line R.R. Co. v Brotherhood of Locomotive Engineers, 398 US 281, 285 (1970) ("Many of the Framers of the Constitution felt that separate federal courts were unnecessary and that the state courts could be entrusted to protect both state and federal rights.").
222. We are also putting aside the question of how a jurisdiction would be able to accumulate sufficient experience to demonstrate the adequacy of a videotaping regime, given that any procedures other than the standard Miranda warnings could be subject to an immediate challenge. For a proposed solution to this problem, see Dorf and Sabel, 98 Colum L Rev at 462-65 (cited in note 97).