Academic journal article
By Seidman, Louis Michael
Constitutional Commentary , Vol. 12, No. 2
Any assessment of what the Constitution is bad at must be grounded in a theory of what it is good for. So let me begin with a brief statement of such a theory: The Constitution is mostly good for providing a platform external from our ordinary politics from which current arrangements can be criticized.
This theory does not entail the view that all that matters is criticism. Any sensible political system requires legitimation as well as destabilization. The theory merely asserts that our ordinary political processes already provide very powerful legitimation. We do not need constitutional law to endorse results that our existing political system has already endorsed.
Nor does the theory entail the view that constitutional law necessarily privileges change. Political systems need to change, but they also need to maintain continuity. Although the Constitution can promote change, it can also appropriately entrench the status quo by providing a platform to criticize proposals for change.
The theory does entail the view that a constitutional provision that does no more than make us more satisfied with outcomes that already satisfy us is not accomplishing anything worthwhile. This is so because constitutional law should serve as a corrective to ordinary politics, and, so, is corrupted when it becomes the servant of politics.
If one shares my view of what the Constitution is good for, it follows, I think, that it is quite bad at dealing with problems of criminal procedure. If the Constitution were doing its job, it would obstruct and destabilize our political impulses concerning crime control. Yet today, the Fourth, Fifth and Sixth Amendments function mostly to make us satisfied with a state of affairs that should trouble us deeply.
Here are two facts about American criminal law: The United States has the most elaborate and detailed constitutional protections for criminal defendants of any country in the world. The United States also has the second highest incarceration rate of any country in the world.(1)
The relationship between these two facts (if, indeed, there is one at all) is controversial. Some critics of the Fourth, Fifth, and Sixth Amendments argue that they stymie effective law enforcement, thereby encouraging crime and requiring a high incarceration rate. Although this connection is theoretically possible, it is quite implausible. The best data available suggest that criminal procedure protections are doing very little to obstruct successful prosecutions. For example, a tiny percentage of criminal cases are lost or "no papered" because of fourth amendment problems.(2) Virtually every empirical study of the impact of Miranda suggests that it has not reduced the rate at which suspects confess.(3) The poor quality of criminal defense work has led some distinguished commentators to conclude that counsel now serves primarily as a barrier to the defendant's participation in his own trial.(4)
In contrast, some defenders of the Constitution's criminal procedure provisions argue that incarceration rates would be even higher if these protections were unavailable. This claim is similarly implausible. By now, the Fourth Amendment is so riddled with exceptions and limitations that it rarely prevents the police from pursuing any reasonable crime control tactic.(5) Although the Supreme Court continues to insist on the ritualistic reading of Miranda warnings, judges have virtually gone out of the business of actually policing the voluntariness of confessions and regularly sanction the sort of coercive tactics that would have led to the suppression of evidence a half century ago.(6) The courts have been satisfied with formal rules requiring the presence of counsel in the courtroom, while tolerating actual courtroom performances that make a mockery of the formal protections.(7) And even when a defendant can demonstrate that the prosecution has violated minimal Fourth, Fifth, and Sixth Amendment protections, the recent evisceration of habeas corpus means that there may be no court available to entertain her claim. …