This Comment examines the Supreme Court's Miranda jurisprudence through the lens of the "constitutional common law" theory, which suggests that the Supreme Court has crafted a large body of subconstitutional rules that are not compelled by the text of the Constitution but serve to protect values implicit in the text. As a result, such rules are subject to the limitations of modification and nullification by later courts. After presenting the characteristics of the constitutional common law theory and its relationship to federalism and separation of powers, the author suggests that the theory can explain the erosion of Miranda decision's brightline rules over time. The Comment also discusses Congress's direct response to Miranda - 18 U.S.C. § 3501- and how it contradicts the directives of the Miranda decision. Next, The author examines Dickerson v. United States, in which the Supreme Court concluded that Miranda announced a constitutional decision that Congress could not supersede by statute. After evaluating the various arguments and counter-arguments posited in that case, the author concludes that the Dickerson decision may have gutted the assumptions on which the theory of constitutional common law is based. Finally, this Comment presents several recommendations for limiting the breadth of the Supreme Court's interpretation of the constitution.
Do As I Say and Not As I Do: Dickerson, Constitutional Common Law and the Imperial Supreme Court,
28 Fordham Urb. L.J. 1239
Available at: http://ir.lawnet.fordham.edu/ulj/vol28/iss4/4