The Constitution and Criminal Procedure: First Principles.

• Author: Wright, Ronald F.

It is hard to say if Akhil Amar has chosen his time well, or if the times have chosen him. Whichever it is, Amar's recent writings on constitutional criminal procedure, now collected in a single volume, have certainly captured the moment. His work has drawn some praise, along with unusually pointed criticism.(3) This is not surprising, for when a scholar of Amar's stature enters a field calling for ambitious changes, others in the field will respond. As advertised, Amar is indeed addressing the "first principles" of constitutional criminal procedure.

This work, which has captured the spotlight, could also capture the future of criminal procedure. This is a time when the field of criminal procedure badly needs a new set of organizing principles. For at least a generation, the U.S. Supreme Court's criminal procedure "revolution" has created the framework for discussion. Warren Court decisions such as Mapp v. Ohio(4) focused attention on the constitutional dimension of criminal procedure. Along the way, these cases created plenty of new obligations for state law enforcement officers, prosecutors, and judges.

Since then, vigilance among academic watchers of the Supreme Court has been the animating spirit of criminal procedure. Most observers and teachers of criminal procedure have devoted themselves to following the latest word from the Supreme Court. We have judged the cases in light of the Court's earlier pronouncements, and have debated how far the Court has departed from the trajectory established in those Warren Court decisions.(5) If the Supreme Court grants certiorari in a case, the issue becomes important enough to debate; if the Supreme Court has not yet addressed a question, it can wait.

This way of thinking about criminal procedure has grown less satisfying and relevant over the years. For one thing, the Supreme Court has tried to make itself less prominent, by leaving more questions to legislatures, state courts, and other institutions. In many areas, the Court's self-denial has succeeded, and these other legal institutions have rushed in to set policy and create principles where the Supreme Court left them room to do so. Even where the Court has continued to announce constitutional principles to guide criminal procedure, it has not moved in a direction that most observers wanted to see. When academic commentary grows more hopeless and irrelevant with each passing year of Supreme Court decisions, the commentators eventually find a way to reconcile themselves to a new reality.(6) They change the conversational subject.

If vigilance in Supreme Court watching can no longer be the staple of criminal procedure, what will replace it? Has Amar given us a new conversational framework, to succeed our generation-long debate about the Supreme Court's departure from the Warren Court revolution?

I believe that Amar has indeed changed the framework for discussing some of the Supreme Court's work. In particular, this book could break our dependence on U.S. Supreme Court precedent, and change the criteria for what makes a strong argument in constitutional criminal procedure. But I have greater doubts about a second element of Amar's program. He claims that constitutional criminal procedure needs to become more like "mainstream" constitutional law in its methodology. However, this is not what the future holds for criminal procedure. The distinctive structure of the institutions developing criminal procedure principles will always create a criminal procedure with a different flavor. Constitutional law in the criminal justice field must develop a more complete theory of how constitutions can accommodate many interpretations by many different institutions. It must create more elaborate ways for constitutional and nonconstitutional sources of law to interact. Criminal procedure, in short, needs a more refined etiquette, a set of expectations for respectful interaction.

I

Although Amar makes a number of intriguing claims about constitutional criminal procedure, they all flow from a central methodological insight. When courts and others must interpret the provisions of a constitution relating to the criminal process, they should use the same constitutional methods that constitutional interpreters use in other settings. As Amar puts it,

[T]he kind of constitutional law discourse and scholarship that now

dominates criminal procedure is generally, in a word, bad

constitutional law-constitutional law insouciant about

constitutional text, ignorant of constitutional history, and

inattentive to constitutional structure.... Good constitutional

criminal procedure must be, first and foremost, good constitutional

law-developed with respect for things like text, history, and

structure. (pp. ix-x)

Amar's book lives up to this promise. It uses classic constitutional law methodology in creative and surprising ways to shed light on many longstanding arguments of criminal procedure, and to offer a unified take on the subject.

Amar's constitutional methodology places text, history, and structure at the forefront. He also mentions "practicality" or common sense as an important interpretive device: "proper methodology of constitutional criminal procedure does not blind itself to practical effects." (p. 154) Supreme Court decisions from the past, and their consistency over time, move back into the shadows. This is not to say that Amar ignores precedent entirely, as a glance at the book's extensive table of cases will show. What the Supreme Court has said about the Bill of Rights over time matters, but where the precedent is self-contradictory and confused (as it frequently is on criminal procedure questions), Amar is quicker than most interpreters to abandon the least attractive lines of cases.

This is a recipe for radicality, but it produces more changes in rationales than changes in case outcomes. In one of his more striking claims, Amar uses textual and historical methods when he argues that we should abandon the "exclusionary rule" as the primary remedy for improper searches and seizures.(7) (pp. 20-31) He points out that the text of the Fourth Amendment does not mention exclusion of evidence, even by implication. The argument then looks to early American practice under the Fourth Amendment, which relied solely on tort actions against government agents who carried out improper searches or seizures. Then, building on the observations of John Henry Wigmore,(8) Amar points to the practical harms that exclusion of reliable evidence has on judges interpreting the Constitution and on the public's confidence in the system.

Textual and historical arguments also lead Amar to the claim that there is no "preference" for warrants built into the Fourth Amendment, despite the announcement of such a preference in many Supreme Court decisions. Instead, the Fourth Amendment commands only that searches and seizures be "reasonable." (pp. 3-17) The requirements for issuing a warrant appear in a separate clause in the text, and do not explicitly modify the more general requirement of "reasonableness" that appears in the first clause. Similarly, the "probable cause" mentioned in the text, Amar argues, is not the presumptive level of justification that the government must give for all searches and seizures. (pp. 17-20) Once again, "reasonableness" provides the general standard for searches and seizures to satisfy; the text requires probable cause only for warranted searches. Historical arguments also support each of these claims about warrants and probable cause. For instance, Amar points to eighteenth-century statutes authorizing warrantless searches and searches based on a justification less than probable cause, and finds no early declarations that warrants or probable cause are ordinarily necessary to demonstrate the reasonableness of a search or seizure. (pp. 7, 18)

The text of the Fifth Amendment leads Amar to reject, at an even more fundamental level, the Supreme Court's jurisprudence of self-incrimination.(9) For Amar, the critical term in the text is "witness": no person shall be compelled to be a "witness" against himself or herself. This text, he argues, does not bar all efforts to compel a...