“We the People” and Our Enduring Values

Akhil Amar chides legal scholars for believing that the current system of criminal procedure, both substantive and remedial, is constitutionally compelled. He writes, “Scholars should know better, but too few of those who write in criminal procedure do serious, sustained scholarship in constitutional law generally, or in fields like federal jurisdiction and remedies” (p. 115). Amar believes, as I do, that criminal procedure has been impoverished by its failure to connect to “larger themes of constitutional, remedial and jurisdictional theory” (p. 115). But as one who has done serious, sustained scholarship in all the areas Amar mentions – or so I like to think – I have grave concerns about Amar’s first principles and their remedial implications. As an admirer of his work in the field of federal jurisdiction, I have been deeply puzzled by his treatment of the Fourth, Fifth, and Sixth Amendments, which is fundamentally at odds with his attitude toward the substantive and remedial structure of the remainder of the Constitution. My thesis is that Amar has been led astray by the very fact that these amendments are about criminal procedure. His attitude toward crime and criminals has led him to conclude that the first principles underlying the criminal procedure amendments are the protection of the innocent and the pursuit of truth. Indeed, he conflates even these two principles, so that the pursuit of truth becomes another way of saying that the innocent must be sorted from the guilty. Amar’s monolithic focus on protecting the innocent is wrongheaded as a matter of constitutional text, history, structure, and spirit. It has led him to make startling claims about the reach, of the Fourth, Fifth, and Sixth Amendments and the remedies that ought to flow from their violation.