The future of constitutional criminal procedure.

AuthorAmar, Akhil Reed

We live in interesting times, and the times are especially interesting for those of us who work in the field of constitutional criminal procedure. In a series of essays, I have sought to explore the foundations of the field--to lay bare, and elaborate upon, the "first principles" of the Fourth, Fifth, and Sixth Amendments.(1) These essays have already begun to provoke heated controversy over some of my specific doctrinal claims.(2) (As I said, we live in interesting times.) In this brief review essay, I shall try to pull the camera back, highlighting some of the general features of my "first principles" project. In the process, I hope to say a few words about the past and present of constitutional criminal procedure, and a few more words about its future--in courts, in Congress, in classrooms, and in conversations everywhere in between.

  1. WHERE ARE WE, AND How DID WE GET HERE?

    1. The Past

      As a subfield of constitutional law, constitutional criminal procedure stands as an anomaly. In many other areas of constitutional law, major Marshall Court opinions stand out and continue to frame debate both in courts and beyond. In thinking about judicial review and executive power, we still look to Marbury v. Madison;(3) in pondering the puzzle of jurisdiction-stripping, we go back to Martin v. Hunter's Lessee;(4) in reflecting on the scope of Congress' enumerated powers, and related issues of federalism, we re-examine McCulloch v. Maryland;(5) in considering vested property rights, we return to Fletcher v. Peck(6) and Dartmouth College v. Woodward;(7) and so on. But no comparable Marshall Court landmarks dot the plain of constitutional criminal procedure.

      It is often thought that the explanation for this anomaly lies in another Marshall Court landmark, Barron v. Baltimore.(8) Most criminal law, the argument goes, is state law; Murder, rape, robbery, and the like are generally not federal crimes. Under Barron, the constitutional criminal procedure rules of the Bill of Rights did not apply against states, and so the Marshall Court predictably heard few cases raising issues of constitutional criminal procedure.

      Barron is indeed part of the story, but only part. For the federal government was very much in the crime-fighting business in the first century of the Bill of Rights. For constitutional scholars, perhaps the most vivid example of early federal criminal law comes from the infamous Sedition Act of 1798; but we must also not forget the territories. Perhaps the most central and sustained project of the federal government in its first century was the "Americanization" of this continent through territorial expansion, organization of territorial governments, and eventual admission to statehood of these territories.(9) In the territories, the federal government did indeed enforce garden-variety criminal laws against murder, rape, robbery, and so on. And the Bill of Rights very much applied to these criminal cases, even under Barron. Territorial law was, constitutionally speaking, federal law.

      But--and this is the key point--for virtually the entire first century of the Bill of Rights, the United States Supreme Court lacked general appellate jurisdiction over federal criminal cases.(10) This little-known fact helps explain why, for example, the Sedition Act prosecutions in the late 1790s--which raised the most important and far-reaching constitutional issues of their day--never reached the Supreme Court for ultimate judicial resolution.(11)

      By the time Congress decided to give the High Court general appellate review over federal criminal cases in 1891, the sun was already setting on the Territorial Era. Thus, the criminal cases the Supreme Court heard under the new jurisdictional regime were indeed a skewed lot, with disproportionately more federal customs violations, tax evasions, and bootleggings than murders, rapes, and robberies. It was this era, of course, that gave birth to the controversial exclusionary rule.

      Then came the Warren Court, which overruled Barron and began applying the Fourth, Fifth, and Sixth Amendments directly against states, under the banner-of selective incorporation. With many, many more state criminal cases fueling its docket, the Warren Court proceeded to build up, in short order, a remarkable doctrinal edifice of Fourth Amendment, Fifth Amendment, and Sixth Amendment rules--the foundations of modern constitutional criminal procedure.

      But these foundations were none too sure. On a lawyerly level, some of the Warren Court's most important criminal procedure pronouncements lacked firm grounding in constitutional text and structure. Key rulings ran counter to early case law both in lower federal courts and in state courts construing analogous provisions of state constitutions. Precisely because so few Marshall Court cases existed, this break with Founding-era understandings was less visible. On key issues, the Warren Court seemed to contradict itself, laying down sweeping rules in some cases that it could not quite live by in other cases.(12) On a political level, many of the Warren Court's constitutional criminal procedure pronouncements did not sit well with the American electorate. The guilty too often seemed to spring free without good reason--and by this time the guilty regularly included murderers, rapists, and robbers and not just federal income tax frauds and customs cheats. In a constitutional democracy, the People, in the long run, usually prevail. Federal judges may be, at times, "insulated" and "countermajoritarian," but majorities elect Presidents, and Presidents, with the advice and consent of Senators, pick federal judges.

      And so, with Earl Warren's retirement, and Richard Nixon's election on a "law and order" platform, the Counter-Revolution began. But the foundations of this Counter-Revolution are also none too sure. Like the Warren Court, the Burger and Rehnquist Courts have at times paid little heed to constitutional text, history, and structure and have mouthed rules one day only to ignore them the next.(13) If the Warren Court at times was too easy on the guilty, the Burger and Rehnquist Courts at times have been too hard on the innocent.

    2. The Present

      Where does all this leave us today? At a crossroads. On at least four different levels, I submit, the present is a particularly ripe moment for a fundamental rethinking of constitutional criminal procedure, and for a choice among competing visions.

      Consider first the level of Supreme Court doctrine. At this level, constitutional criminal procedure is, to put it bluntly, a mess. For more than a quarter of a century, the Burger and Rehnquist Courts have busily reshaped Warren Court doctrine in this field. But often, the Court has chosen to proceed by indirection. Warren Court landmarks are distinguished away rather than overruled;(14) old cases are hollowed out from within, but the facade remains--or does it? And so United States Reports now swells with language bulging this way and that, at virtually every level of generality and specificity.

      But the problem runs even deeper. For starters, many of the contradictions came from the Warren Court itself. The Warren Court told us that the Fourth Amendment requires warrants and probable cause for all searches and seizures.(15) But in Terry v. Ohio,(16) Chief Justice Warren himself, writing at the peak of his reign, told us that frisking is a "search" that does not require warrants or probable cause.(17) Indeed, Terry quoted the Amendment as simply banning unreasonable searches and seizures, and declined even to recite the Amendment's language about warrants and probable cause.(18) The Warren Court told us that the Constitution requires exclusion of illegally obtained evidence.(19) But in Terry, the Court warned against a "rigid and unthinking application of the exclusionary rule."(20) The Warren Court told us that the exclusionary rule derived from a synergy between the Fourth Amendment and the Fifth Amendment Self-Incrimination Clause.(21) But in Schmerber v. California, Justice Brennan--the playmaking guard of Earl Warren's team--sharply separated the Fourth and Fifth Amendments.(22) In so doing, Justice Brennan and the Court clearly held that a man could indeed be obliged to furnish evidence--his very blood, no less--against himself in a criminal case. And the logic of that clear holding, as I have explained elsewhere,(23) left both the exclusionary rule and broad theories of self-incrimination exclusion dangling in midair, with no principled support, constitutionally speaking.

      So too, the Burger and Rehnquist Courts have failed to live up to their articulated principles. The post-Warren Court has admitted that the exclusionary rule lacks constitutional footing(24) but has kept the rule nonetheless. The Court has failed to build up alternative remedial schemes that would protect innocent people from outrageous searches and seizures, and would also deter future government abuse. In Los Angeles v. Lyons, decided in the heyday of the Burger Court, the majority simply looked the other way when Los Angeles police officers engaged in obviously brutal, possibly racist, and at times deadly chokeholds of presumptively innocent citizens.(25) The post-Warren Court has, at times, admitted that warrants are not the ultimate Fourth Amendment touchstone; reasonableness is.(26) But in Zurcher v. Stanford Daily News, the Court worshipped the warrant and blessed the most constitutionally unreasonable of searches--paper searches of anti-government newspapers.(27) The Stanford Daily News was not even alleged to have been engaged in criminal wrongdoing, and yet it, too, got the back of the judicial hand.

      When judges either must strain against dominant doctrine to explain easy cases (like Terry and Schmerber), or actually get easy cases wrong (like Lyons and Zurcher), they have obviously taken a wrong turn somewhere. Hence a desperate need for returning to, and rethinking, first principles.

      ...

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