Misplaced Constitutional Rights

Authors

Brandon L. Garrett, Duke Law SchoolFollow

Document Type

Article

Publication Date

2020

Keywords

constitutional rights, jury instructions, qualified immunity, remedies

Abstract

Constitutional rulings risk an unnoticed type of mission creep: misplacement through adoption in settings that they were not designed to regulate. This Article describes how in a set of important areas—and sometimes despite the Supreme Court’s explicit cautionary language—constitutional rules have taken hold outside of the settings that they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights and standards are often context limited to particular government actors, procedural settings, or remedies. Based on the text of the Constitution or precedent, some rights apply only during civil cases, while others apply only during criminal cases; some regulate executive actors, while others exclusively relate to judicial officers. Misplacement can occur if, for example, a right that regulates evidence at criminal trials is extended, without support, to regulate executive officers. This type of misplacement has occurred in areas including eyewitness evidence, civil punitive damages, and the Miranda warnings. In addition, executive actors, ranging from administrative agencies to local police, may incorporate into their decision-making constitutional rules not intended to provide guidance in such settings. In doing so, actors may overprotect or, far more troubling, underprotect constitutional rights in unintended ways. It can be quite valuable to borrow from constitutional law, including to safeguard rights and harmonize nonconstitutional law with constitutional standards. However, doing so requires far more careful decision-making beginning with clearer judicial guidance on where and to whom constitutional rights should attach. The problem of misplaced constitutional rights should be addressed far more carefully by judges and government actors.

Citation

Brandon L. Garrett, Misplaced Constitutional Rights, 100 Boston University Law Review 2085-2131 (2020)