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Archive of posts filed under the Congressional Constitutional Interpretation category.

A Tweet Storm about Congress, Healthcare Reform, and Pathological Partisanship in America

Yeah, I know, tweet storms are supposed to be on Twitter. This one is, except I didn’t “thread” my tweets properly, as several people, including Paul Rosenzweig, patiently explained to me. I will try to do that next time. Anyway, for the moment, I am presenting the thread here, even though a bunch of tweets [...]

Miranda, Congress and the Boston Marathon Bombing Suspect

A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude [...]

The Tillmans on Shall and May

            Nora and Seth Tillman have published this fragment on the constitutional meaning of  “shall” and “may.”   They contend that in 18th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today.  This may be important [...]

A Final Word on Congress and Miranda

           From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute.  They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension.  Since it is the Court, not Congress, [...]

The Dickerson Decision

           The majority opinion in Dickerson v. United States, 530 U.S. 428 (2000), was written by Chief Justice Rehnquist (the author of the Quarles decision).  The opinion states its hold succinctly at the outset: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of [...]

Congress, Miranda and the “Public Safety” Exception

Last week Attorney General Holder suggested that the administration may seek legislative changes to facilitate the questioning of terrorism suspects within the criminal justice system.  One potential change would be to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate [...]

Congress’s Responsibilty for the Constitutionality of Healthcare Legislation

           When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time.  Senator McCaskill, for example, responded to a question about the constitutionality [...]