Introduction

Traditional narratives of constitutional development concerning the criminal process protections of the Bill of Rights, including the Fourth Amendment's search and seizure provision and the Fifth Amendment's self-incrimination clause (both of which I spotlight illustratively) are paradigmatically Whiggish. In those narratives, the promise of the Constitution's criminal process protections are by and large dormant – neglected, even – in a state of courts and parties preoccupied with the protection of economic rights. But then, at the urging of progressive and civil libertarian legal and political activists who cared about those rights, these protections were finally nursed to fulfillment, achieving their apotheosis during the Supreme Court's liberal Warren years (1953–69). Since then, the belatedly realized criminal process guarantees of the Bill of Rights are held to have either been institutionalized as a quasi-permanent part of the contemporary constitutional order, holding their place amidst either public indifference or even hostility; or, alternatively, they are held to be in genuine peril from the persistent predations of a political right that seeks to “turn back the clock” on those hard-won constitutional rights.

This familiar account of constitutional development concerning the criminal process provisions of the Bill of Rights is straightforward, elegant, and inspiring. In the style of a successful Aristotelian narrative, it has a beginning, a middle, and an end. It puts a moral project at its center.