Judicial Deference to Legislatures in Constitutional Analysis

69 Pages Posted: 23 Sep 2011 Last revised: 27 Sep 2013

Date Written: July 21, 2011


North Carolina is one of the only states to have a statutory definition of voluntary consent for police searches; it essentially codified the Supreme Court’s “Bustamonte” rule. In theory, this statute could eventually face a constitutional challenge if the Supreme Court adopted a requirement of informed consent – police warnings of the right to refuse a search – as many have urged. Considering this possibility as a hypothetical, it seems strange that conventional Fourth Amendment analysis has largely ignored whether challenged state actions are legislative, executive, or judicial; attention has focused instead on federalism concerns, interpretive approaches, and tradeoffs between public safety and individual privacy. Nevertheless, there are both policy reasons and anecdotal evidence suggesting that the Supreme Court should, and in fact occasionally does, defer to legislatures in certain matters of criminal procedure, even when it would not defer to identical decisions by police. The potential clash between this statute and constitutional doctrine illustrates these points nicely. This Article uses this localized example as a launching point to address the larger issue of how state legislation can color the Supreme Court’s analysis. Separation of powers is an important but unexplored component of criminal procedure, and this Article is a first foray into this inquiry. This missing piece of Fourth Amendment analysis has broad implications for many areas of criminal procedure.

Keywords: Separation of Powers, Fourth Amendment, Schneckloth, Bustamonte, Consent, Search, Police, Vehicles, Criminal Procedure, Legislature, Kentucky v. King

JEL Classification: K14, K42, K40

Suggested Citation

Stevenson, Drury D., Judicial Deference to Legislatures in Constitutional Analysis (July 21, 2011). North Carolina Law Review, Vol. 90, p. 2083, 2012, Available at SSRN: https://ssrn.com/abstract=1931936

Drury D. Stevenson (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1897 (Phone)

HOME PAGE: http://www.stcl.edu

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