Document Type

Article

Publication Date

1-2013

Abstract

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the use of such rules is “ubiquitous in constitutional law”5 and “there is no special category of prophylactic rules . . . . The phrase ‘prophylactic rule’ is accordingly best seen as a simple redundancy, sort of like ‘null and void.’”6 However, when Schauer maintains that (1) the right to remain silent “existed independent[ly] of Miranda,” 7 and that (2) “the right to counsel during interrogation” also “preceded Miranda,”8 I have to part company with him on both counts. (I readily admit that whether there was a right to counsel during interrogation prior to Miranda is a much closer question than whether there was a right to remain silent.) Much turns on what one means by “rights.”

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