Whether the judicial branch in the United States should exercise activism or restraint has been debated since before the constitution was ratified. Delegates to the Constitutional Convention in 1787 were split on the issue, and left Article III of the Constitution purposefully ambiguous, most likely to dodge the issue altogether so the document would be ratified with hopes the first administration would set sound precedent. It was not until Chief Justice John Marshall took that lead in Marbury v. Madison (1803) that judicial review was given adequate credence – despite the fact that many saw even that principle as an abuse of the court's power. In defining activism and restraint, most consider activist judges to break with precedent and see the bench as a vehicle for radical change – even beyond the scope of the Court's role in Article III.
[...] The act gave those being interrogated by police more rights than had been afforded them before Miranda, however it removed the “prophylactic rules” of the judgement. Section 3501 mentions the Court's rules as considerations when judging whether or not statements can be used in court, but says the rules do not have be followed to the letter in order for a statement to be admissible. The act takes a U-turn from Miranda and re-establishes mere voluntariness of statements as the rule. The Court's response was to ignore the existence of a congressional response (Dery 56). [...]
[...] The Court created a “public safety” exception to Miranda, relegated the rules to the margin of “procedural safeguards” (Dery 61). In Oregon v. Estad (1985), the Court again noted the lack of constitutional backing to the Miranda rules. Justice Sandra Day O'Connor wrote: Miranda exclusionary rule sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief of compelled testimony. [...]
[...] Thus after viewing Miranda from these myriad angles, the Court consistently characterized Miranda as something other than a rule anchored in the Constitution” (Dery 68-7). These cases are important not only because they show the Court recognized “prophylactic rules” are not Constitutionally mandated, but also because up until the year 2000, the Court summarily ignored section 3501 of the congressional act of 1969. Dickerson v. United States (2000) changes both those aspects. In its ruling, the Court asserted the constitutionality of Miranda after 31 years of acknowledging and chipping away at the constitutionality of its ruling. [...]
[...] In Dickerson the Court made it clear that it intends to do so, even after it acknowledged such rules are beyond the scope of the Fifth Amendment. It is grabbing more power than the delegates to the Constitutional Convention, or the people of the United States for that matter, ever intended for the Court. This is an example of activism at its worst. The question then becomes: where do our laws come from? Are we a nation of laws, or of men? [...]
[...] The Dickerson opinion, also, acknowledges the presence of section 3501, and balks at the statute reasserting the Court's own “prophylactic rules.” Again, making the Court's law-making power supreme to that of Congress and assuming any rules made by the Court are constitutional. The Court's reasoning is weak, and lacks legitimacy beyond “because we say (Dery 80). It had already stated in other cases that the Miranda were mere expansions of the Fifth Amendment and not required by the Constitution, and the Dickerson falls short of a bold statement that Miranda is more than “based on constitutional principals.” And here is where the problem lies. [...]
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