NCJ Number
102638
Journal
Prosecutor Volume: 19 Issue: 4 Dated: (Spring 1986) Pages: 15-49
Date Published
1986
Length
33 pages
Annotation
This article discusses how the debate on the judiciary's approach to interpreting the U.S. Constitution bears on selected criminal justice issues, calls for a national debate on particular relevant issues, and reviews five U.S. Supreme Court cases that indicate Court tendencies in constitutional interpretation.
Abstract
Professor Raoul Berger maintains that Federal judges are obligated to render decisions that comply with the discernible intentions of the framers of the Constitution. This position is called 'interpretivism.' Berger's critics, called 'noninterpretivists,' hold that Federal judges must adapt constitutional principles to changing times and cannot therefore be bound by the framers' intentions. After outlining Berger's paradigm, which reflects traditional constitutional law principles, and illustrating it in a discussion of the constitutionality of the death penalty, this article reviews the criminal justice policy thrusts of the Warren and Burger Courts. The discussion includes a representative debate between Professor Fred Inbau and Professor Yale Kamisar. The debate focuses on constitutional interpretations bearing on police interrogation, confession admissibility, and the exclusionary rule. Analyses of five recent U.S. Supreme Court decisions -- Oliver v. United States, Nix v. Williams, New York v. Quarles, Berkemer v. McCarty, and Oregon v. Elstad -demonstrate why a reexamination of judicial power is advocated by the author. The author argues for the 'interpretive' approach to constitutional law. 360 footnotes.