Constitutional Law: Fifth Amendment Due Process: Vague and Indefinite Statute: Right to Trial on Question of Illegal Presence in United States

1953 ◽  
Vol 51 (3) ◽  
pp. 437
Author(s):  
Marcus A. Rowden
Keyword(s):  
United States ◽  
Constitutional Law ◽  
Due Process ◽  
Fifth Amendment

Human Dignity and the Psychology of Interrogation in Miranda v. Arizona.

1986 ◽  
Vol 1 ◽  
pp. 109-124 ◽  
Author(s):  
Christopher Manfredi
Keyword(s):  
United States ◽  
Free Will ◽  
Supreme Court ◽  
Human Dignity ◽  
Due Process ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Fifth Amendment ◽  
Police Interrogation ◽  
Procedural Safeguards

Miranda v. Arizona, holding confessions obtained during police interrogation inadmissable unless preceded by a full and specific disclosure of a suspect's rights, is perhaps the best known U.S. Supreme Court decision on due process. The decision was built on the twin pillars of human dignity and free will. The Court determined that the intent of the Fifth Amendment is to protect human dignity, and argued that dignity is jeopardized by state actions whose effect is to diminish free will. Consequently, the Court extended the restrictions on police investigators it had been developing since Bram v. United States. In that decision, the Court ruled that confessions could not “be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” In Miranda, the Court attached the widest possible meaning to “improper influence,” ruling that interrogation is, in itself, an influence against which suspects must be protected by procedural safeguards. It is instructive to reflect on these issues at a time when similar questions are being raised in Canadian courts under the Charter of Rights and Freedoms.

Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins Of Laissez-Faire Constitutionalism

1985 ◽  
Vol 3 (2) ◽  
pp. 293-331 ◽  
Author(s):  
Michael Les Benedict
Keyword(s):  
United States ◽  
Constitutional Law ◽  
Due Process ◽  
The United States ◽  
Late Nineteenth Century ◽  
Dred Scott ◽  
The Supreme Court ◽  
Late Nineteenth ◽  
Laissez Faire ◽  
Intellectual Foundations

Until recently, historians of American constitutionalism agreed that, except for the infamous Dred Scott decision, the most unfortunate decisions of the Supreme Court were those that incorporated the notion of laissez-faire into the Constitution in the late nineteenth century. These decisions permitted the Court to frustrate efforts to secure a more just economic order in the United States until the 1930s. The intellectual foundations of laissez-faire constitutionalism have been so alien to most legal scholars since the 1930s (and equally unintelligible to many even earlier) that they have found it difficult to believe these decisions were the result of efforts to enforce ‘neutral’ principles of constitutional law, to utilize the terms of Herbert Wechsler's famous analysis. They could not conceive of the Court's rhetoric about liberty and due process as anything but cant, a subterfuge designed to camouflage other purposes.

National Security and Constitutional Law. Précis: The Constitution in a Time of National Emergency

2009 ◽  
Vol 42 (2) ◽  
pp. 217-224 ◽  
Author(s):  
Richard A. Posner
Keyword(s):  
United States ◽  
National Security ◽  
Constitutional Law ◽  
Due Process ◽  
Well Being ◽  
The United States ◽  
Recent Book ◽  
Bill Of Rights ◽  
Starting Point ◽  
National Emergency

In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.

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