ith the Court almost doing away with it and then approving its revival by the States. More recently, awakened legislative interest in the sentencing process, such as providing enhanced sentences for
hate crimes, has faltered on holdings that increasing the maximum sentence for a crime can only be based on facts submitted to a jury, not a judge, and that such facts must be proved beyond a reasonable doubt.
During the last two decades, however, the Court has also redrawn some of these lines. The self-incrimination and right-to-counsel doctrines have been eroded in part (although in no respect has the Court returned to the constitutional jurisprudence prevailing before the 1960s). The exclusionary rule has been cabined and redefined in several limiting ways. Search and seizure doctrine has been revised to enlarge police powers, and the exception for
special needs has allowed such practices as suspicionless, random drug-testing in the workplace and at schools. But, a reformation of the requirements for confronting witnesses at trial has, in some cases, increased the complexity and effectiveness of prosecutions. Further, a realist view of modern criminal process led to a willingness to consider the adequacy of defense counsel beyond representation at trial.
An expansion of the use of habeas corpus powers of the federal courts undergirded the 1960s procedural and substantive development, thus sweeping away many jurisdictional restrictions previously imposed upon the exercise of review of state criminal convictions. Concomitantly with the narrowing of the precedents of the 1950s and 1960s Court, however, came a retraction of federal habeas powers, both by the Court and through federal legislation.
The past decade saw the Court’s most extensive examination of gun rights under the Second Amendment, with five Justices holding that, at a minimum, the amendment constitutionally enshrines an individual’s right to possess an operational handgun in one’s home for self protection. This finding mostly was regarded as unremarkable: it largely comported with the expectations and realities of gun ownership in the U.S. and was not expected to lead to wholesale loosening of government regulation, or even to weigh heavily in political debate. Most initial scholarly interest focused more on the Court’s interpretational methodology.
Originalism - the notion that the meaning of constitutional text is fixed at the time it is proposed and ratified - found favor as an interpretational method in the nineteenth century, fell out of favor beginning in the Progressive era, but regained some currency in the 1980s. The paucity of judicial precedent on constitutionally protected gun rights made
originalism appear a particularly apt approach as the Court considered the Second Amendment during its 2007-2008 term. The result was a thorough airing of the merits and variations in originalist analysis. Is the
plain meaning of the words of the original text as it would have been understood at the time it was drafted paramount, or should the intent and expectations of the drafters prevail? This distinction can lead to different opinions on whether the Second Amendment protects individual or collective rights. Is
living Constitution analysis? Some commentators asserted that
originalism is both unduly rigid in limiting analysis to contemporaneous sources and malleable in presenting the interpreter with a range of often contradictory historical materials. In any event, a constitutional case in the twenty-first century without a line of probative judicial precedent to guide decision-making is rare, and contemporary constitutional analysis is more typically informed by a combination of earlier Court decisions, traditional practices, a desire to sustain foundational principles in an evolving society, and pragmatic considerations.
The last six decades were among the most significant in the Court's history. They saw some of the most sustained efforts to change the Court or its decisions or both with respect to a substantial number of issues. On only a few past occasions w