Thursday, January 2, 2020
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.