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Shared Constitutional Interpretation

By Michael C. Dorf and Barry Friedman


In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a \u27constitutional decision\u27 and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda\u27s \u22invitation\u22 to \u22Congress and the States to . . . search for . . . other procedures which are at least as effective\u22 as the Court\u27s prescribed warnings in protecting the suspect\u27s rights. This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been extremely jealous of its prerogative in having the last word as to the Constitution\u27s meaning. What then, does the \u22invitation\u22 in Miranda and Dickerson really mean? The authors argue that constitutional experimentation is to be applauded, but its success depends upon institutional humility and mutual respect. First, the article explains that Miranda is best understood as establishing a suspect\u27s constitutional right to notice of the right to silence and a constitutional right to procedures adequate to ensure a continuous opportunity to exercise the right to silence. Understanding Miranda\u27s core as a bedrock constitutional rule obviates the need to engage in the familiar debate about \u22prophylactic\u22 rules. Second, the article uses a series of hypothetical statutes requiring videotaping of confessions and prohibiting the presence of counsel, to examine the shared opportunities and responsibilities of Congress, the States and other government actors in interpreting the meaning of the \u22Miranda\u22 rule. The authors conclude that notwithstanding the Supreme Court\u27s recent rulings narrowing the scope of congressional power and expanding its own power at the expense of all other constitutional actors, considerable room remains for non-judicial actors to participate in the elaboration of constitutional meaning

Topics: United States v. Dickerson, Constitutional Law
Publisher: Scholarship@Cornell Law: A Digital Repository
Year: 2000
OAI identifier: oai:scholarship.law.cornell.edu:facpub-1090
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