Columbia Law Review March, 1998 267 a constitution of democratic experimentalism

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[FN666]. The most comprehensive analysis of the empirical studies conducted in Miranda's immediate wake indicates that the case resulted in a small decline in confession rates, no discernible change in police interrogation practices after the giving of warnings, and at most a small decline in the overall effectiveness of criminal investigation. See Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621, 645 (1996). Leo's own study found that seventy‑eight percent of suspects waived their Miranda rights, and that suspects with prior felony records were four times more likely to invoke their rights than were suspects with no prior criminal record. See id. at 654‑55.
[FN667]. See Irene M. Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Interrogation, 68 N.C. L. Rev. 69, 109‑13 (1989).
[FN668]. See Donald A. Dripps, Police, Plus Perjury, Equals Polygraphy, 86 J. Crim. L. & Criminology 693, 698‑701 (1996).
[FN669]. For an analysis of the interests served by exclusion and the Fourth Amendment more generally, see Colb, supra note 639, at 1459‑61.
[FN670]. Beyond the difference mentioned next, Miranda warnings differ from the exclusionary rule because, by seeking to reduce the pressure on suspects, they sometimes directly prevent a coerced confession from an innocent suspect. See Withrow v. Williams, 507 U.S. 680, 690‑92 (1993) (drawing this contrast between Miranda and the Fourth Amendment exclusionary rule).
[FN671]. See, e.g., Illinois v. Gates, 462 U.S. 213, 230 (1983) (adopting "totality of the circumstances" test for judging probable cause).
[FN672]. Most involve some combination of civil damages awards and internal review. See, e.g., Amar, supra note 630, at 811‑16 (advocating enterprise civil liability, punitive damages, attorney's fees, class actions, injunctive relief, and expedited proceedings); Richard A. Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 56 (proposing a tort remedy).
[FN673]. As a general matter, it could be argued that state legislators are naturally risk‑averse, and thus unlikely to experiment, see Susan Rose‑ Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. Legal Stud. 593, 594 (1980), absent specific incentives of the sort described below.
[FN674]. See Amar, supra note 630, at 811‑16.
[FN675]. Cf. Fallon & Meltzer, supra note 635, at 1739 ("It was much easier for the Court to lay down the Miranda rules, for example, knowing that the prison doors need not necessarily swing open for every inmate convicted with the aid of confessions not preceded by the requisite warnings.").
[FN676]. See supra text accompanying note 90.
[FN677]. For an intriguing suggestion to the contrary, see Washington v. Glucksberg, 117 S. Ct. 2258, 2292‑93 (1997) (Souter, J., concurring in the judgment) (arguing that the Court's decision to sustain Washington's prohibition on physician‑assisted suicide could be reconsidered on the basis of future experiments).
[FN678]. 411 U.S. 1 (1973).
[FN679]. See infra notes 686‑690 and accompanying text.
[FN680]. See Rodriguez, 411 U.S. at 40‑44.
[FN681]. See Julie K. Underwood, School Finance Adequacy as Vertical Equity, 28 U. Mich. J.L. Reform 493, 497‑98, 500 (1995).
[FN682]. See id. at 501‑02 (noting the failure of funding challenges in Kansas, Illinois, Virginia, North Dakota, Minnesota, and Wisconsin).
[FN683]. See id. at 501 (citing New Jersey, Massachusetts, Alabama, Tennessee, Missouri, Kentucky, Texas, and Montana).
[FN684]. See William H. Clune, Educational Adequacy: A Theory and Its Remedies, 28 U. Mich. J.L. Reform 481, 489 (1995).
[FN685]. See supra Part II.
[FN686]. See Martha I. Morgan et al., Establishing Education Program Inadequacy: The Alabama Example, 28 U. Mich. J.L. Reform 559, 592‑94 (1995) (discussing Alabama Coalition for Equity, Inc. v. Hunt, No. CV‑91‑ 0117‑R, 1993 WL 204083, at *1 (Ala. Cir. Ct. Apr. 1, 1993) (finding that the state was in violation of its legal obligation to provide students with an adequate and equitable education)).
[FN687]. Input standards concern, for example, the definition of adequate textbooks, educational supplies, school facilities, and guidance and library services. See id. at 569 (discussing state statutory requirements).
[FN688]. Output standards concern, for example, drop‑out rates, performance on various kinds of tests, or readiness for further education or work. See id. at 581.
[FN689]. For an account of the typical measures, see Eric A. Hanushek, When School Finance "Reform" May Not Be Good Policy, 28 Harv. J. on Legis. 423, 426‑41 (1991).
[FN690]. See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (en banc).
[FN691]. See William N. Eskridge, Jr., A Jurisprudence of "Coming Out": Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 Yale L.J. 2411, 2431‑32 (1997).
[FN692]. See D.C. Code Ann. § 1‑2520 (1981).
[FN693]. See Gay Rights Coalition, 536 A.2d at 20‑26.
[FN694]. See id. at 38‑39.
[FN695]. See id. at 71, 74 (Belson, J., concurring in part and dissenting in part).
[FN696]. See id. at 49‑54 (Ferren, J., concurring in result in part and dissenting in part).
[FN697]. See Eskridge, supra note 691, at 2447‑56.
[FN698]. See Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 1008‑36 (1996).
[FN699]. See id. at 1003‑07 (describing the breakdown of this model).
[FN700]. See id. at 968‑1008.
[FN701]. See supra Part II.
[FN702]. See Sturm & Guinier, supra note 698, at 1003‑08.
[FN703]. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citing Clark v. Community for Creative Non‑Violence, 468 U.S. 288, 293 (1984)).
[FN704]. See Dorf, supra note 607, at 1210.
[FN705]. See Planned Parenthood v. Casey, 505 U.S. 833, 881‑87 (1992) (plurality opinion of O'Connor, Kennedy, and Souter, JJ.).
[FN706]. See Bernard Bailyn, The Ideological Origins of the American Revolution 175 (1967).
[FN707]. See A.V. Dicey, Introduction to the Study of the Law of the Constitution 39 (10th ed. 1959).
[FN708]. See Bailyn, supra note 706, at 176‑82.
[FN709]. See id. at 183‑84.
[FN710]. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (stating that "[a] constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind").
[FN711]. See, e.g., United States v. Lopez, 514 U.S. 549, 584‑602 (1995) (Thomas, J., concurring) (urging a return to the original understanding of the Commerce Clause).
[FN712]. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 86 Geo. L.J. 1765, 1795‑ 96 (1997).
[FN713]. See generally Ackerman, supra note 15.
[FN714]. See id. at 264 (arguing that the Supreme Court should defend constitutional text and amendments, however radically defined, against the gradual change of ordinary politics).
[FN715]. See id.
[FN716]. See id. at 6 (setting forth the notion of "dualist democracy").
[FN717]. See id. at 42‑44, 47‑50, 105‑30.
[FN718]. See id. at 42, 44‑47, 81‑104.
[FN719]. See Bruce Ackerman, A Generation of Betrayal?, 65 Fordham L. Rev. 1519, 1521 (1997) (equivocating as to whether the Civil Rights Movement of the 1960s spoke with the voice of popular sovereignty); Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 805 (1995) (constitutional moment validating the use of congressional‑executive agreements in lieu of the treaty power).
[FN720]. Ackerman may, of course, save his theory by reference to any of many speculative possibilities, for example, that there may eventually be national legislation of New Deal proportions that in effect repeals the New Deal. Time will tell whether such speculation was prescient or an exercise in compensating fallacy.
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