The Ubiquity of Prophylactic Rules

Abstract

The Supreme Court's opinion in Miranda v. Arizona' does not even look like an ordinary opinion. As many critics have commented, it reads more like a legislative committee report with an accompanying statute.2 As if that were not enough, the Court has, since Miranda, repeatedly said that the Miranda are not required by the self-incrimination clause of the fifth amendment but are judge-made designed to implement that provision.3 Against this background, it is not surprising to find Miranda under attack not just as wrong but as illegitimate. Professor Grano, for example, argues that rules like Miranda's always raise questions of legitimacy; and that even if are sometimes legitimate, Miranda's rule is not.4 I want first to suggest that Professor Grano is mistaken in his argument that what the Court did in Miranda is different from, and less legitimate than, what it does when it prescribes the kind of that he finds legitimate. Then I will make a broader argument-that prophylactic are not exceptional measures of questionable legitimacy but are a central and necessary feature of constitutional law. Indeed, constitutional law consists, to a significant degree, in the elaboration of doctrines that are universally accepted as legitimate, but that have the same prophylactic character as the Miranda rule.

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