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Publication Date

2025

Abstract

Questions about which rights, liberties, and guarantees are included in the U.S. Constitution’s protections, and how they are protected, have long produced animated debate among scholars, judges, and advocates. Yet, while today’s debates may seem familiar, they take place at a perilous time in our country’s trajectory. We are six decades removed from the Warren Court’s criminal procedure revolution, and just a few years into the Roberts Court’s full-throated embrace of originalist jurisprudence. Whether many of the protections we have come to know and recognize from the Warren Court—the exclusionary rule, Miranda warnings, and Gideon’s mandate—are subjected to re-evaluation under a “history and tradition”-style analysis and, if so, whether they survive that analysis, remains to be seen.

At the same time, state courts and constitutions offer the same hope now as they did at the onset of judicial federalism in the 1970s. Attorneys for criminal defendants sought refuge in the states to vindicate their rights, and they rejuvenated state constitutions as independent sources of liberty that can extend beyond the bare minimums of federal protection. However, while these litigants produced changes in case law, those changes were not frequently accompanied by formal constitutional changes. Few state constitutions were amended to include the core criminal procedure requirements, and few changes were even seriously considered.

In this article, I conduct an original survey of all changes to state constitutions’ criminal procedure protections that were presented to voters from 1960 to the present. I first divide these proposed changes into categories based on subject matter, source of the amendment, and outcome, and then I explain what motivated many of the changes. The survey reveals that, while many state constitutional drafters were motivated to remove noncompliant language from their constitutions and, in recent years, to undermine the rights of criminal defendants through restricting the right to bail and adding “victims’ rights” amendments, few drafters ever proposed adding an exclusionary rule, requiring Miranda warnings, or incorporating Gideon’s mandate.

I supplement this survey by further examining the absence of criminal procedure-focused amendments. I evaluate a representative set of primary source documents from state constitutional conventions and reform commissions to evaluate the subjective motivations of drafters during this period. I document one of the few areas in which drafters were motivated to strengthen their constitutional protections—namely, by banning wiretapping and safeguarding an express right to privacy.

Ultimately, I conclude that the absence of core criminal procedure holdings from state constitutions does not bode well for the future. Given the rise in far-right judges, “originalist” jurisprudence, and the ideological capture of “nonpartisan” judicial nominating processes in the states, if the Supreme Court walks back from many of the core criminal procedure holdings, the independent state constitutional development of those same protections could well suffer a similar fate in the states. Accordingly, I argue that state constitutions should be amended to include these protections.

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