CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, January 2, 2020

Garrett on Misplaced Constitutional Rights

Brandon L. Garrett (Duke University School of Law) has posted Misplaced Constitutional Rights on SSRN. Here is the abstract:
Constitutional rulings, particularly by the U.S. Supreme Court, risk a type of mission creep: constitutional rules can be misplaced through adoption by government actors in settings that they were not designed to regulate. In this Article, I describe how in a set of important areas, and sometimes despite the Supreme Court’s explicit cautionary language, constitutional rules have taken hold outside of the settings in which they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights or standards are often limited to particular government actors, procedural settings, or remedies. Thus, some rights apply only during civil cases, others apply only to criminal cases, some regulate executive actors, while others exclusively relate to judicial officers. Misplacement can occur if, for example, a right designed to regulate criminal trial remedies is extended, without support, to regulate executive officers. This type of misplacement has occurred in areas ranging from eyewitness evidence, punitive damages, the well-known Miranda v. Arizona warnings, and the Court’s civil rights doctrine of qualified immunity.
Rulings by the Court designed to elaborate the underlying constitutional right have done more—they have become part of the instructions given to a jury when weighing evidence in a case or they have been used in rules for admissibility of expert evidence. Executive actors, ranging from administrative agencies to local police, have incorporated into their decisionmaking constitutional rules not intended to provide guidance in such settings. In doing so, actors may over or under-protect constitutional rights in ways not intended. It can be quite valuable to borrow from constitutional law, including to harmonize non-constitutional law with constitutional standards. However, doing so requires far more careful decisionmaking. The problem of misplaced constitutionalized rights, beginning with clearer judicial guidance on where constitutional rights should attach, should be addressed far more carefully by judges and by government actors.

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