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SSRN Electronic Journal
Article . 2019 . Peer-reviewed
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Misplaced Constitutional Rights

Authors: Garrett, Brandon L.;

Misplaced Constitutional Rights

Abstract

Constitutional rulings, particularly by the U.S. Supreme Court, risk an unnoticed type of mission creep: constitutional rules can be misplaced through adoption 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 settings they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights or standards are often context-limited to particular government actors, procedural settings, or remedies. Thus, some rights apply only during civil cases, others only criminal, some regulate executive actors, while others exclusively relate to judicial officers. Misplacement can occur if, for example, a right designed to regulate evidence at criminal trial is extended, without support, to regulate executive officers. This type of misplacement has occurred in areas ranging from eyewitness evidence, civil punitive damages, and the Miranda v. Arizona warnings. In addition, executive actors, ranging from administrative agencies to local police, may incorporate into their decisionmaking constitutional rules not intended to guide such settings. In doing so, actors may over-protect or, more troubling, 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, beginning with clearer judicial guidance on where and to whom constitutional rights should attach. The problem of misplaced constitutionalized rights should be addressed far more carefully by judges and by government actors.

Country
United States
Related Organizations
Keywords

Constitutional law, 340, Administration of justice, Jury instructions, 320, Civil rights, Law

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
Average
Average
bronze