The Warren Court’s Regulatory Revolution in Criminal Procedure

82 Pages Posted: 25 Mar 2010 Last revised: 17 Jan 2011

Eric J. Miller

Loyola Law School Los Angeles

Date Written: March 19, 2010

Abstract

The standard story describing the Warren Court’s criminal procedure “rights revolution,” claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. Frightened by the popular backlash against high crime rates, a cowed Court in Terry v. Ohio shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were in fact two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry.

The standard story is wrong. The Warren Court’s Fourth Amendment jurisprudence cannot be separated into rights-expanding and contracting phases. Rather than introducing a privacy right, the Warren Court, from the early 1960s onwards, mounted a consistent attack on pre-existing versions of the right to privacy. Rather than a privacy-protecting rights regime, the central Fourth Amendment right under the Warren Court was personal security. Extending security into areas hitherto unregulated by the law was a major concern of the Terry Court: an expansionist Terry cannot be squared with a Court in retreat in response to public outcry over crime rates.

Worse, the story produced a barren doctrinal and political account of the Fourth Amendment. Focusing on equality, anti-discrimination, and privacy too easily paints law enforcement as a repressive force whose power and numbers should be severely limited. This narrow liberalism has turned progressive attention away from the vital and difficult task of generating a doctrinal and political account of policing: its justification, intrinsic limits, and proper means of regulation.

Keywords: legal history, Warren Court, Criminal Procedure, privacy, liberalism, republicanism, wiretap, regulation, rights, Fourth Amendment, liberal, Terry v. Ohio, Katz, vagrancy, police, policing, discrimination

Suggested Citation

Miller, Eric J., The Warren Court’s Regulatory Revolution in Criminal Procedure (March 19, 2010). Connecticut Law Review, Vol. 43, No. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1575356 or http://dx.doi.org/10.2139/ssrn.1575356

Eric J. Miller (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1175 (Phone)

HOME PAGE: http://www.lls.edu/aboutus/facultyadministration/faculty/facultylistl-r/millereric/

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