Constitutional Rights, Due Process, and the Dissenting Voice

Howard Law Journal, Vol. 40, p. 399, 1997

44 Pages Posted: 17 Apr 2007

See all articles by Cedric Merlin Powell

Cedric Merlin Powell

University of Louisville - Louis D. Brandeis School of Law

Abstract

This article traces some of the major doctrinal conceptions and recurring themes in Judge Julia Cooper Mack's constitutional criminal procedure jurisprudence. Through her dissents and concurrences, Judge Mack articulates an absolutist notion of constitutionally mandated rights. That is, the Constitution stands as a non-negotiable guarantee of rights against unwarranted intrusions by the State. Judge Mack is uncompromising in resisting the allure of doctrinal uniformity or practical convenience when analyzing the bedrock cluster of rights embodied in the Fourth, Fifth, and Sixth Amendments. Judge Mack speaks truth to power by adhering to a moral theory of substantive constitutional rights, an unwavering faith in the Constitution as a buffer between the enormous power of the State and its citizens, and the belief that the Constitution is a living, sacred document with a collective resonance. She emphatically rejects colorblind constitutionalism and its reinforcement of a caste system, and she attemtpts to articulate normative constitutional principles rooted in the Fourth, Fifth, and Sixth Amendments. Her dissents and concurrences are not only an expression of passioned disagreement - they are, in essence, the articulation of a substantive theory of constitutional rights.

Keywords: Fourth Amendment, Fifth Amendment, Sixth Amendment, due process, criminal procedure, constitutional rights

Suggested Citation

Powell, Cedric Merlin, Constitutional Rights, Due Process, and the Dissenting Voice. Howard Law Journal, Vol. 40, p. 399, 1997, Available at SSRN: https://ssrn.com/abstract=981055

Cedric Merlin Powell (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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