Misplaced Constitutional Rights
42 Pages Posted: 23 Dec 2019 Last revised: 4 Feb 2020
Date Written: February 4, 2020
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.
Keywords: Constitutional rights, jury instructions, qualified immunity, remedies
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