Activism as Restraint: Lessons from Criminal Procedure

I. Introduction Much has been made in recent years about the puzzling chasm that separates constitutional law, on the one hand, and criminal procedure, on the other-what one leading commentator terms, accurately enough, a "dissociation of legal sensibility."' All too often the Supreme Court has approached criminal procedure questions without regard to considerations that are widely recognized as relevant to constitutional interpretation, such as textual meaning, original intention, and historical practice.2 Rather than trouble itself with such considerations, the debate in criminal procedure tends to focus exclusively on results-specifically, on the perceived wisdom or fairness of all sorts of procedural innovations in the criminal justice system.3 This is very odd because, thanks to the Warren Court, American criminal procedure is constitutional law, and remains so even after thirty years of conservative revisionism. By now it is common knowledge that almost the entire field of criminal procedure, formerly within the more or less exclusive province of the several States, has been constitutionalized. This was the famous-or, if you prefer, infamous-"Criminal Procedure Revolution."4 Now it is only slightly exaggerated to say that all of the rules that really count concerning the process of investigating and prosecuting crimes come from the pages of the United States Reports, not state and federal rules of criminal procedure.5 I readily add my voice to the growing chorus that "the Constitution needs to be put back into criminal procedure."6 One key benefit of bridging the artificial divide between constitutional law and criminal procedure would be to force courts and scholars to take seriously the normative implications of an expansive role for the federal judiciary in criminal procedure. After all, one of the dominant themes of the constitutional law literature over the last two generations has been coming to grips with the vexing "counter-majoritarian difficulty," Alexander Bickel's famous, if somewhat dated, phrase describing the tension that arises in a democracy when an unaccountable judiciary sets aside actions of the politically accountable branches of government. To be sure, the bulk of the scholarly debate has been aimed at minimizing or explaining away the counter-majoritarian difficulty and therefore justifying Supreme Court adventurism in pursuit of ends that often could not readily be achieved through the legislative process.8 Still, the relevant point here is that constitutional law theorists recognize on some level that broad exercises of judicial power require special justification in a representative democracy such as ours. This recognition has been conspicuously absent in criminal procedure, where broad exercises of federal judicial power are largely taken for granted. In Professor Akhil Amar's memorable phrasing, both courts and many criminal procedure scholars have treated the Constitution not as a binding document with the force of law, but rather as a "ventriloquist's dummy that can be made to say anything the puppeteer likes."9 A poignant example can be found in the Sixth Amendment right to trial by jury. Like all the other rights conferred by the Sixth Amendment, the right to trial by jury applies "[i]n all criminal prosecutions."10 A textualist would readily infer that these rights should be available in every criminal prosecution-that, in other words, the phrase "all criminal prosecutions" means precisely what it says. This inference would be all the more compelling given that Article III unequivocally mandates the use of juries in all federal criminal trials.ll Undaunted by text, however, the Supreme Court has charted another course. In Duncan v. Louisiana,'2 the Warren Court sugar-coated the bitter pill of incorporation of the jury-trial provision against the states by concluding that states need not provide juries in prosecutions for "petty" crimes. …