446
Scalia, J., dissenting
detail, the only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful "prophylactic" restrictions upon Congress and the States. That is an immense and frightening anti-democratic power, and it does not exist.
It takes only a small step to bring today's opinion out of the realm of power-judging and into the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations that "Miranda is a constitutional decision," ante, at 438, that "Miranda is constitutionally based," ante, at 440, that Miranda has "constitutional underpinnings," ante, at 440, n. 5, and come out and say quite clearly: "We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States." It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress.
I
Early in this Nation's history, this Court established the sound proposition that constitutional government in a system of separated powers requires judges to regard as inoperative any legislative Act, even of Congress itself, that is "repugnant to the Constitution."
"So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case." Marbury, supra, at 178.
The power we recognized in Marbury will thus permit us, indeed require us, to "disregar[d]" § 3501, a duly enacted
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