Miranda, the Constitution, and Congress.

• Author: Strauss, David A.

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"?(1) If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary?

These were the central questions posed by United States v. Dickerson.(2) It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based,"(3) that Miranda has "constitutional underpinnings,"(4) that Miranda is "a constitutional decision,"(5) and that Miranda "announced a constitutional rule."(6) But the dissent chided the majority for being unable to bring itself to "come out and say quite clearly: `We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States.'"(7)

To put the dissent's point more precisely, the Dickerson majority never said that the Fifth Amendment is violated whenever a statement obtained in violation of Miranda is admitted against an accused.(8) The Court's earlier statements to the effect that Miranda establishes only a "prophylactic rule" that "sweeps more broadly than the Fifth Amendment itself"(9) seemed to preclude the Dickerson majority from making that assertion. The dissent concluded that "[t]he Court therefore acts in plain violation of the Constitution when it denies effect to" [sections] 3501.(10)

At first glance, the dissent's logic seems powerful. The Constitution protects certain rights. The Supreme Court's job is to determine what rights the Constitution protects. If an Act of Congress infringes those rights, it is invalid. But an Act of Congress that does not violate the Constitution must be enforced. If a violation of Miranda is not a violation of the Constitution, how can the Court enforce Miranda in the face of a contrary Act of Congress?

In fact, however, the dissent's attack on the majority opinion is mistaken -- doubly mistaken -- and its mistakes illuminate something fundamental about constitutional law. The dissent is mistaken, first, in its understanding of how courts develop the principles of constitutional law that they enforce. Miranda rules are "prophylactic" rules that "go beyond the Constitution itself" in the sense that the Miranda rules do not simply reflect the values protected by the Fifth Amendment. The Miranda rules also reflect judgments about how those values can best be secured, given the capacities and propensities of the various institutions involved -- in the case of Miranda, the police and the lower courts. Virtually all of constitutional law, however, consists of principles that are shaped in part by institutional judgments of this kind. In Miranda, the Court did this shaping self-consciously and more or less explicitly. But in principle, Miranda is no different from any number of well-established rules of constitutional law that also, in a sense, "sweep[] more broadly than the [Constitution] itself."

The dissent's second mistake is in its conception of Congress's role in developing constitutional principles. When the courts determine that the Constitution requires a certain result, it may follow that Congress cannot disagree -- but that conclusion need not follow. It all depends (or at least it should depend) on whether Congress is in a better position to make the judgments, including the judgments about other institutions' capacities and propensities, that are necessarily involved in elaborating constitutional law. This mistake by the dissent reflects a common way of thinking about the relationship between the courts and Congress. The common idea is that decisions by the Supreme Court are either "interpretations of the Constitution" or "decisions that Congress can modify." (Decisions in the latter category are sometimes called "constitutional common law."(11)) The mistake is in not recognizing that a decision may be both an interpretation of the Constitution and a principle that Congress may modify.

The dissent's two mistakes are related. Part of what the courts do, when they elaborate principles of constitutional law, is to make complex judgments of a factual nature about the capacities and propensities of various institutions. Sometimes, Congress will be in as good a position as the courts to make these judgments. When Congress is as qualified as the courts are to make these judgments, Congress is entitled to play a co-equal role in elaborating constitutional principles. Because the dissent in Dickerson (and others who echo its logic) failed to understand how principles of constitutional law are developed, it also did not understand how Congress should be allowed to contribute to that process. This second mistake -- to understate the proper role of Congress in elaborating constitutional principles -- is a characteristic of some of the Supreme Court's most prominent recent decisions.

In this Essay I will try to spell out, and defend, these positions. Specifically, I will argue that it is misleading to ask whether Miranda warnings are "required by the Constitution" or are mere "prophylactic rules" that "go beyond" what "the Constitution itself" requires. It is misleading because constitutional rules -- routinely, unavoidably, and quite properly -- treat "the Constitution itself" as requiring "prophylaxis." In principle Miranda is, in this respect, just like many other constitutional rules of undoubted legitimacy.

The conclusion that Miranda is as legitimate as other well-established constitutional principles does not entail, however, that Congress is precluded from modifying it. Congress's role does not depend on a distinction between "the Constitution itself" (supposedly untouchable by Congress) and "prophylactic" rules that "go beyond" the Constitution itself (and therefore, supposedly, can be freely changed or rejected by Congress). Nor does Congress's power depend on a distinction between "interpreting" the Constitution (supposedly the province of the courts) and "enforcing" the Constitution (supposedly the province of Congress). Congress's role in the elaboration of constitutional principles is itself a complex constitutional issue. In some areas, Congress can be trusted to superintend the development of constitutional principles; in other areas Congress cannot be trusted to do so. These are, in fact, familiar features of our constitutional order, even if we do not often describe them in this way, and even if the current Supreme Court, in some of its recent decisions, has not properly understood this aspect of the Constitution. Or so I contend.

1. MIRANDA AS A PROPHYLACTIC RULE

   The Fifth Amendment to the Constitution provides that no person shall "be compelled to be a witness against himself" in any criminal case.(12) If every statement obtained in violation of Miranda were "compelled" within the meaning of the Fifth Amendment, then Miranda would follow from the Fifth Amendment, in a relatively straightforward fashion.(13) But the Court has not been willing to assert that every statement obtained in violation of Miranda is compelled.(14) There are hypothetical examples that seem to make such an assertion implausible: a suspect, sophisticated about criminal law, only ambiguously in custody, still in comfortable surroundings (in his or her own home, say), who answers a single question asked in a surpassingly gentle manner -- that kind of thing. Even apart from such an extreme hypothetical case, it is possible to imagine relatively realistic situations in which custodial questioning without warnings would produce answers that we would not characterize as "compelled" in the ordinary sense of that term.(15)

   Miranda is based exclusively on the Self-Incrimination Clause of the Fifth Amendment. Why, then, does Miranda exclude statements that are not "compelled"? The basic answer is familiar by now. Before Miranda, the courts had no choice but to conduct a case-by-case inquiry into whether a particular confession, made in custody, was the product of compulsion or was instead made voluntarily. (Formally the question was whether the statements were "voluntary" for purposes of the Due Process Clause, rather than "compelled" within the meaning of the Self-Incrimination Clause, but those two notions can be equated for present purposes.) Those case-by-case inquiries, which had to consider all the circumstances surrounding the confession, were unsatisfactory in several respects. It is very difficult for a court, after the fact, imaginatively to recreate the conditions that existed in a custodial setting. Even if the courts did have a full understanding of the circumstances in which the confession was made, there is no metric for the courts to use in determining whether those conditions were so coercive that they rendered the confession involuntary for constitutional purposes. Because judicial determinations of voluntariness are unreliable, law enforcement officers might be encouraged to try to compel incriminating statements in relatively subtle ways in the hope that they would later be able to convince the courts that the statements were not compelled. And even if the courts were able to do a satisfactory job of determining voluntariness after the fact, case-by-case determinations, tied as they are to the particular circumstances of each case, give law enforcement authorities who want to do the right thing too little guidance about how they should proceed.

   Miranda was designed to address these deficiencies in the case-by-case approach. Whether Miranda succeeds or not is, of course, controversial. But the justification for Miranda is that -- on balance -- it does a better job of enforcing the Self-Incrimination Clause than the case-by-case voluntariness approach does. Miranda results in the exclusion of some confessions that are not compelled within the meaning of the Fifth Amendment...