Waiver of Constitutional Rights

• Author: Theodore Eisenberg
• Pages: 2830-2832

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A potential beneficiary may waive almost any constitutional claim. Rights not of constitutional dimension also may be waived. The Supreme Court has struggled with the questions whether any special DOCTRINE governs waivers of constitutional rights and, if so, whether the special doctrine applies to all constitutional rights. These waiver issues, like much of the rest of constitutional law, took on massive new proportions with the rapid expansion of constitutional rights in the 1960s and 1970s. Prior to that era, there were relatively few rights eligible for waiver.

Distinctions between waivers of constitutional rights and waivers of other rights do not appear in very early cases. The most frequent waiver issue probably was whether a civil litigant had waived the SEVENTH AMENDMENT right to TRIAL BY JURY. Hodges v. Easton (1882), a case raising this issue, was the setting for one of the Supreme Court's important statements concerning waiver. In Hodges the Court acknowledged that litigants may waive the right but cautioned, in an oft-quoted statemt that seemed to contemplate special treatment for waivers of constitutional rights, that "every reasonable presumption shold be indulged against ? waiver."

Then, as later would be true, there seemed to be a gap between the Court's statement of the waiver standard and its application of the standard in deciding cases. The Court's casual attitude toward waiver emerged in Pierce v. Somerset Railway (1898) and Eustis v. Bolles (1893), in which the Court found waivers of claims that state laws unconstitutionally impaired the OBLIGATION OF CONTRACT. In each case not only was "every reasonable presumption" against waiver not indulged; the Court went so far as to indicate that a state court's finding of waiver of constitutional rights did not even raise a federal issue reviewable by the Supreme Court. It may be, however, that the Court was insufficiently attentive to differences between the waiver issue and the existence of an independent and ADEQUATE STATE GROUND for decision, which would preclude Supreme Court review of the state court's judgment.

Although the Court had not become deeply involved in waiver issues, the legal community knew that waiver doctrine might have to be attuned to differences among constitutional

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rights. Through eight editions from 1868 to 1927, THOMAS M. COOLEY'S treatise on constitutional law acknowledged that litigants may waive constitutional rights but it stated that in criminal cases this "must be true to a very limited extent only."...