Shared Constitutional Interpretation after Dickerson

80 Pages Posted: 22 Sep 2000

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Michael C. Dorf

Cornell Law School


In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights.

This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been extremely jealous of its prerogative in having the last word as to the Constitution's meaning. What then, does the "invitation" in Miranda and Dickerson really mean?

The authors argue that constitutional experimentation is to be applauded, but its success depends upon institutional humility and mutual respect. First, the article explains that Miranda is best understood as establishing a suspect's constitutional right to notice of the right to silence and a constitutional right to procedures adequate to ensure a continuous opportunity to exercise the right to silence. Understanding Miranda's core as a bedrock constitutional rule obviates the need to engage in the familiar debate about "prophylactic" rules.

Second, the article uses a series of hypothetical statutes requiring videotaping of confessions and prohibiting the presence of counsel, to examine the shared opportunities and responsibilities of Congress, the States and other government actors in interpreting the meaning of the "Miranda" rule. The authors conclude that notwithstanding the Supreme Court's recent rulings narrowing the scope of congressional power and expanding its own power at the expense of all other constitutional actors, considerable room remains for non-judicial actors to participate in the elaboration of constitutional meaning.

JEL Classification: K10, K14

Suggested Citation

Friedman, Barry and Dorf, Michael C., Shared Constitutional Interpretation after Dickerson. Available at SSRN: or

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Michael C. Dorf

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States


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