SAYING WHAT THE LAW IS: HOW CERTAIN LEGAL DOCTRINES IMPEDE THE DEVELOPMENT OF CONSTITUTIONAL LAW AND WHAT COURTS CAN DO ABOUT IT

By Lynn Adelman & Jon Deitrich

Abstract

It has long been the province of the judicial branch to say what the law is, particularly in the area of constitutional interpretation. However, over the past few decades Congress and the Supreme Court have adopted various legal doctrines, including the good faith exception to the exclusionary rule, the habeas corpus standard of review contained in the Antiterrorism and Effective Death Penalty Act (AEDPA), and the doctrine of qualified immunity applicable in civil rights actions, which impede courts' ability to fulfill their role of saying what the Constitution means.

This article discusses the manner in which these doctrines impede the development of constitutional law. It then offers suggestions on how courts might overcome the problem. In particular, it encourages courts to continue deciding the constitutional issues presented, even if the doctrines in question preclude courts from granting a remedy in the specific case before them. Failure to do so will result in the stagnation of constitutional law and cause harm to future litigants seeking the protections of the Constitution.

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