Constitutional Criminal Procedure

Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government.