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From judging to legislating: The Supreme Court as a law-making body

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  1. Introduction.
    1. The judicial branch in the United States: should it exercise activism or restraint.
    2. Defining activism and restraint.
  2. Congress as the law-making branch of the federal government.
  3. The court and the power to resolve disputes involving Constitutional questions.
    1. The Miranda decision (Miranda v. Arizona, 1966).
    2. Congress's direct response to the Miranda decision.
    3. The case of Michigan v. Tucker (1974).
    4. The case of Dickerson v. United States (2000).
  4. The Dickerson opinion.
  5. Conclusion.

Whether the judicial branch in the United States should exercise activism or restraint has been debated since before the constitution was ratified. Delegates to the Constitutional Convention in 1787 were split on the issue, and left Article III of the Constitution purposefully ambiguous, most likely to dodge the issue altogether so the document would be ratified with hopes the first administration would set sound precedent. It was not until Chief Justice John Marshall took that lead in Marbury v. Madison (1803) that judicial review was given adequate credence ? despite the fact that many saw even that principle as an abuse of the court's power. In defining activism and restraint, most consider activist judges to break with precedent and see the bench as a vehicle for radical change ? even beyond the scope of the Court's role in Article III.

[...] The act gave those being interrogated by police more rights than had been afforded them before Miranda, however it removed the ?prophylactic rules? of the judgement. Section 3501 mentions the Court's rules as considerations when judging whether or not statements can be used in court, but says the rules do not have be followed to the letter in order for a statement to be admissible. The act takes a U-turn from Miranda and re-establishes mere voluntariness of statements as the rule. The Court's response was to ignore the existence of a congressional response (Dery 56). [...]


[...] The Court created a ?public safety? exception to Miranda, relegated the rules to the margin of ?procedural safeguards? (Dery 61). In Oregon v. Estad (1985), the Court again noted the lack of constitutional backing to the Miranda rules. Justice Sandra Day O'Connor wrote: Miranda exclusionary rule sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief of compelled testimony. [...]

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