The Future of Constitutional Criminal Procedure
![handle is hein.journals/amcrimlr33 and id is 1137 raw text is: THE FUTURE OF CONSTITUTIONAL CRIMINAL PROCEDURE
Akhil Reed Amar*
We live in interesting times, and the times are especially interesting for those of us
who work in the field of constitutional criminal procedure. In a series of essays, I
have sought to explore the foundations of the field-to lay bare, and elaborate
upon, the first principles of the Fourth, Fifth, and Sixth Amendments.' These
essays have already begun to provoke heated controversy over some of my specific
doctrinal claims.2 (As I said, we live in interesting times.) In this brief review
essay, I shall try to pull the camera back, highlighting some of the general features
of my first principles project. In the process, I hope to say a few words about the
past and present of constitutional criminal procedure, and a few more words about
its future-in courts, in Congress, in classrooms, and in conversations everywhere
in between.
I. WHERE ARE WE, AND How DID WE GET HERE?
A. The Past
As a subfield of constitutional law, constitutional criminal procedure stands as
an anomaly. In many other areas of constitutional law, major Marshall Court
opinions stand out and continue to frame debate both in courts and beyond. In
thinking about judicial review and executive power, we still look to Marbury v.
Madison;3 in pondering the puzzle of jurisdiction-stripping, we go back to Martin
v. Hunter's Lessee;4 in reflecting on the scope of Congress' enumerated powers,
* Southmayd Professor, Yale Law School. J.D., 1984, Yale Law School; B.A., 1980, Yale University.
1. See Akhil Reed Amar, Sixth Amendment First Principles, 84 GEO. L.J. 641 (1996); Akhil Reed Amar &
Ren6e B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REv. 857 (1995);
Akhil Reed Arnar, Fourth Amendment First Principles, 107 HARV. L. REv. 757 (1994).
Because my essay today builds so directly on these three articles, I shall not clutter it with repeated citations to
this trilogy. The reader interested in more elaboration of any of my claims here about the Fourth, Fifth, and Sixth
Amendments is urged to consult the relevant article(s) in the trilogy.
2. See, e.g., Donald A. Dripps, Akhil Amar On Criminal Procedure and Constitutional Law: Here I Go Down
That Wrong Road Again, 74 N.C. L. REv. 1559 (1996); Yale Kamisar, On the Fruits of Miranda Violations,
Coerced Confessions, and Compelled Testimony, 93 MICH. L. REv. 929 (1995); Tracey Maclin, When the Cure for
the Fourth Amendment is Worse than the Disease, 68 S. CAL. L. REv. 1 (1994); Carol S. Steiker, Second Thoughts
About First Principles, 107 HARV. L. Rev. 820 (1994).
3. 5 U.S. (1 Cranch) 137 (1803). See generally Akhil Reed Amar, Marbury, Section 13, and the Original
Jurisdiction of the Supreme Court, 56 U. CI. L. REv. 443,445-53 (1989).
4. 14 U.S. (1 Wheat.) 304 (1816). See generally Akhil Reed Amar, The Two-Tiered Structure of the Judiciary
Act of 1789, 138 U. PA. L. REv. 1499, 1499-1505 (1990); Akhil Reed Amar, A Neo-federalist View of Article III:
Separating the Two 71ers of Federal Jurisdiction, 65 B.U. L. REv. 205, 205-19 (1985) [hereinafter Amar, Article 111].
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The Future of Constitutional Criminal Procedure
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