The Correct Outcome in Vega v. Tekoh

Earlier this week, the Supreme Court heard argument in Vega v. Tekoh.  That case presents the question whether a plaintiff has a civil remedy against a police officer under 42 U.S.C. 1983 for obtaining a statement in violation of the Constitution, when the statement was later admitted at his trial.  In Vega, the statement was obtained from a suspect in custody without having first given him his Miranda warnings.  In other words, one pivotal question is whether or not Miranda warnings are required by the Constitution, in particular the Fifth Amendment.

An earlier case, Dickerson v. United States, 530 U.S. 428 (2000) seems to suggest that they are.  In fact they aren’t, and for that reason the police officer should win this case.

My friend Prof. Orin Kerr at Berkeley takes the opposite view in his Volokh Conspiracy article here.  But his analysis  —  that the command to give Miranda warnings is a “constitutional rule”  — is misguided.

I’ll try to be brief for once.  If you want to find out whether something is required by the text of the Constitution, read the text of the Constitution. I have, and Miranda warnings aren’t there. They may have “constitutional footings,” whatever exactly that means (what does it mean?), but they aren’t requirements of the Fifth Amendment since the Fifth Amendment says absolutely nothing about them. That being the case, the officer in the Tekoh case may have violated something, but he did not violate the Constitution.  Accordingly, he is not liable under Section 1983.

Dickerson and Dickerson groupies get as far as they do only by playing sleight of hand with language. The phrase “constitutional rule” in particular is noxious, and deliberately so, because it implies that whatever rule it’s talking about (here, the rule requiring the rendition of Miranda warnings to persons in custody) is a part of the Constitution, but never actually makes the case that they are. This is because the case can’t be made. At the famous end of the day, the Constitution cannot be made to contain words it doesn’t have simply by judicial legerdemain.

In saying this, I’m hardly saying anything new. This is the very center of textualism; indeed, to my way of thinking, it’s the center of fidelity to the Constitution (as opposed to, say, freelancing, of which Miranda is a leading example).

I might add that Chief Justice Rehnquist, the author of the Dickerson majority, had enough of a conscience carefully to avoid saying that Miranda warnings are “required by” or are “part of” the Fifth Amendment. The opinion contains no such language.  He instead had to go for the gauzy circumlocution about constitutional “footings.” That’s clever, I guess, in the way Rehnquist was clever, but it’s unsound constitutional interpretation, as Scalia mercilessly pointed out in his dissent.

Full disclosure:  I had a hand in Dickerson, which I described in this earlier post.




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