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Tuesday, Apr. 18, 2000

On April 19 -- in one of the most anticipated Supreme Court cases in a generation, Dickerson v. United States -- the Court will be asked to decide whether the Constitution requires the four famous warnings of Miranda v. Arizona: the suspect must be told he has "the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

The History

To understand the stakes in tomorrowâs decision, a little background is in order. First, one must recall how drastically the legal landscape for criminal defendants changed when the Warren Court decided Miranda in 1966. Before Miranda, for 175 years, the police had not been required to give the four warnings. Thus, the Courtâs decision in Miranda to require them to do so was a bolt from the blue. It was all the more bitterly contested because it was seen as wholly unprecedented. The decision in Miranda did, however, appear to offer one escape hatch -- for the Courtâs opinion stated that "Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective" as the four warnings.

Congress took the bait. In 1968, it enacted a statute that did away with the warning requirement -- replacing it with a voluntariness standard under which courts were to assess on a case-by-case basis whether defendantsâ confessions were voluntary (and thus admissible as evidence against them) or compelled (and thus suppressed). "The intent of the bill," the Senate Report attached to the law admitted, "is to reverse the holding of Miranda v. Arizona." Accordingly, defenders of the 1968 law claimed that Miranda was wrong and that Congress, as the representative of the People, had the ability to overrule it. As then-Representative Gerald Ford said, "I refuse to concede . . . that the elected representatives of the American people cannot be the winner in a confrontation with the U.S. Supreme Court . . . . The people of America -- not the courts -- are the ultimate authority in America." But the 1968 statute has never been enforced because various Administrations believed it to be unconstitutional. An activist federals appeals court, however, appointed a friend-of-the-court to defend the use of the statute -- even though the Clinton Administration maintains that the statute is unconstitutional.

The Predictions

Tomorrow, the Court will have to decide whether Miranda (and its four warnings) trumps Congressâ statute, or vice-versa. To resolve this question, the Court will be forced to decide between two of the things it loves to hate: criminal defendantsâ rights and the Congress of the United States.

Like a child ashamed of its parents, the current Court, headed by Chief Justice William H. Rehnquist, has tried to break rank with many of the Warren Court opinions that protected criminal defendants from prosecutors and police. In short, it has proved itself no fan of defendantsâ rights -- which might make one believe that Miranda will be a goner this term. But the Court has not been a fan of Congress either -- repeatedly striking down, on constitutional grounds, diverse federal legislation ranging from the Line-Item Veto Act to a statute that criminalized gun possession near schools. So, based on this trend, one could argue that it is the federal statute purporting to overrule Miranda -- and not Miranda itself -- which is likely to be a goner.

Which of its bêtes noir, one may wonder, will the Court be forced to embrace -- Congress or the accused criminal? Many observers have predicted that faced with this grim choice, the Court will punt. These commentators expect that the Court will creatively reinterpret Miranda -- to say that while the opinion itself required warnings, it did not hold, in addition, that the Constitution requires them.

What is required, by this logic, is some kind of guarantee of voluntariness -- whether in the form of the four prospective warnings, or in the form of a retrospective evidentiary assessment of whether a particular confession is voluntary. (That would explain the original escape hatch in Miranda itself -- in which the Court invited legislatures to enact substitutes for the warnings that were just as effective). On this view, Congressâ statute requiring a "voluntariness" assessment would be affirmed as constitutional, and the famous four warnings of Miranda are (and have always been) a nice idea, but never a Constitutional requirement.

The Problem With The Prediction

The Court could hardly have been clearer had it said: Congress, This Means You. Accordingly, as noted above, even the defenders and proponents of the original 1968 law largely did not claim to be complying with Miranda. Instead, they trumpeted the Peopleâs power, through Congress, to be "the winner" in a clash with the Supreme Court over the meaning of the Constitution. Thus, the conflict between Congress and the Warren Court here cannot be finessed so easily; the current Supreme Court must decide which of the two branches is right as to the Constitutionâs meaning.

The Proper Constitutional Theory

The obvious answer might seem to be that the Warren Court must have been right, not Congress. To many today, the notion that an elected branch of government could prevail in a confrontation with the Court on constitutional interpretation sounds absurd. Today, we believe that the Court is the only institution that can say what the Constitution means. But this belief, like Miranda itself, was an invention of the Warren Court -- which relied on this idea to convey why judicial decisions should be controlling authority in 1950âs battles over desegregation. (Indeed, it is downright ironic that the current, more conservative Rehnquist court endorses this doctrine of judicial supremacy in light of the fact that many conservatives would argue for popular sovereignty instead.)

In fact, the text of the Constitution requires Presidents and members of Congress to engage in constitutional interpretation. Accordingly, over history, they have frequently questioned the Courtâs pronouncements on what the Constitution means. Think, for example, of Abraham Lincolnâs criticism of the pro-slavery decision in Dred Scott, or FDRâs attacks on a Supreme Court that was preventing important New Deal legislation. In the 1980s, Americans were treated to a rich dialogue on the meaning of the Constitution and whether it protected privacy and required desegregation in the hearings of Robert Bork to be a Justice on the Supreme Court. More recently, the 1993 Congress passed a law reversing a Supreme Court decision that took a cramped view of religious freedom, only to have the Rehnquist Court strike down the law claiming it was constitutional usurpation. The Rehnquist Court has erred in repeatedly accepting the notion that the Court has exclusive control over constitutional interpretation -- so that the legislatures and executive have none at all.

Now, one might argue, in defense of the Rehnquist Courtâs view, that exclusive judicial control over constitutional interpretation is necessary to protect individual rights from majoritarian control. But this argument, too, is misguided. The Court is not the only branch able to protect individual rights. The structure of the Constitution creates what we may call a "rights-protecting asymmetry" -- whereby the concurrence of all three branches is necessary before the government may take away an individualâs rights. Congress must pass a bill; the President must enforce it (and must not veto it or, in the case of a criminal statute, must not pardon those who violate it); and the courts must side with the constitutionality of the governmentâs action. Each branch, then, effectively can prevent the deprivation of a right.

As a result, in cases where the Congress strips away individual rights, the Court should assert its prerogative to offer an exclusive interpretation of the Constitution that trumps that of Congress. In contrast, when Congress is more protective of rights than is the Court, Congress should be able to reverse a Supreme Court decision based on Congressâ different, and more protective, interpretation of the Constitution.

What The Court Should Do About Miranda Now

Based on this framework, the Court should strike down the 1968 federal statute that purported to replace Mirandaâs four warning with a voluntariness test. The Miranda decision, in setting down four prophylactic warnings, was much more protective of individual rights than is the federal statuteâs fact-specific assessment of voluntariness. That is not surprising: As the statuteâs own defenders admitted, they wanted to reverse Miranda and constrict the rights of the accused.

In light of Congressâ purpose to constrict -- rather than expand -- judicially-recognized rights, Congressâ constitutional judgment should not be determinative. If Congress could simply overrule Miranda by statute, then any significant rights-expanding constitutional decision -- from Roe v. Wade to Brown v. Board of Education -- would be in jeopardy of being overruled on a popular majorityâs whim.

There is one way, however, that Congress may permissibly speak to the Miranda decision in the future. Even if the 1968 statute were struck down after tomorrowâs oral argument, as I believe it should be, Congress could enact a new statute -- which would be informed by the possibility that the four warnings may now be a constitutional irrelevancy, and which might therefore be constitutional. As a basis for the enactment of the new law, Congress might find that, as a factual matter, the Miranda case entrenched the four warnings into our collective consciousness (for example, into virtually every legal TV show and movie to which Americans have been exposed) and that the broad prophylactic need for the warnings therefore has waned during the period from 1966 to the present.

Congress, not the Court, is best suited to make these factual assessments. With constituent meet-and-greets, polls, and public outreach, Congress stands in a much better position to assess the world out there, than does a group of five cloistered Justices. The four warnings in Miranda, therefore, should be constitutionally required until and unless Congress makes it clear, through a new statute passed in the future, that the relevant facts -- not its membersâ views of individual rights -- have changed.

Neal Kumar Katyal is an Associate Professor at Georgetown Law School. He was previously National Security Adviser to Deputy Attorney General Eric H. Holder, and a law clerk for Justice Stephen Breyer of the U.S. Supreme Court.

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