I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, 1968.2 Section 3501 makes the pre-Escobedo,3 pre-Miranda4 "due process"-"totality of circumstances"-"voluntariness" rule the sole test for the admissibility of confessions in federal prosecutions, thereby purporting to overrule by legislation the Warren Court's two most famous confession cases. (Although rarely, if ever, noted, § 3501 also literally overrules at least two other Supreme Court cases.5 ) However, even if it were true that the Supreme Court would not have permitted Congress to do anything about (or would only have allowed it to do very little about) Miranda some thirty years ago, whether the Court will take the same position today is a very different question. For in the 1970s and 80s the Court had some unkind things to say about Miranda.6 The Burger and Rehnquist Courts' characterization of and comments about Miranda give reason to believe that the Court's thinking about that famous case has changed dramatically since the days of the Warren Court. To give but one example of how the case for upholding the constitutionality of § 3501 has changed: So far as I can tell, no witness who testified at the committee hearings on the Crime Bill and no participant in the House and Senate debates over the bill ever referred to the Miranda warnings or Miranda procedural safeguards as "prophylactic." This fact is hardly surprising for the Miranda opinion itself never did so either.7 But when a panel of the Fourth Circuit in United States v. Dickersons sustained the constitutionality of § 3501, thereby holding that the pre-Miranda "voluntariness" test set forth in this section, rather than the Miranda case, now governs the admissibility of confessions in the federal courts, it relied heavily on the fact that the Burger and Rehnquist Courts had "consistently (and repeatedly) ... referred to the [Miranda] warnings as 'prophylactic' . . . and 'not themselves rights protected by the Constitution."'9 In this Article, I shall consider the arguments made in defense of the constitutionality of § 3501 at the time it was debated and enacted some thirty years ago and the arguments made on behalf of § 3501 today. But first I think it useful to discuss the history of, and debates over, § 3501-and the mood of the U.S. Senate (and the country) at the time. I
Kamisar, Yale. "Can (Did) Congress 'Overrule' Miranda?" Cornell L. Rev. 85, no. 4 (2000): 883-955.