456
Scalia, J., dissenting
Finally, the Court asserts that Miranda must be a "constitutional decision" announcing a "constitutional rule," and thus immune to congressional modification, because we have since its inception applied it to the States. If this argument is meant as an invocation of stare decisis, it fails because, though it is true that our cases applying Miranda against the States must be reconsidered if Miranda is not required by the Constitution, it is likewise true that our cases (discussed above) based on the principle that Miranda is not required by the Constitution will have to be reconsidered if it is. So the stare decisis argument is a wash. If, on the other hand, the argument is meant as an appeal to logic rather than stare decisis, it is a classic example of begging the question: Congress's attempt to set aside Miranda, since it represents an assertion that violation of Miranda is not a violation of the Constitution, also represents an assertion that the Court has no power to impose Miranda on the States. To answer this assertion—not by showing why violation of Miranda is a violation of the Constitution—but by asserting that Miranda does apply against the States, is to assume precisely the point at issue. In my view, our continued application of the Miranda code to the States despite our consistent statements that running afoul of its dictates does not necessarily—or even usually—result in an actual constitutional violation, represents not the source of Miranda's salvation but rather evidence of its ultimate illegitimacy. See generally J. Grano, Confessions, Truth, and the Law 173-198 (1993); Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100 (1985). As Justice Stevens has elsewhere explained: "This Court's power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. . . . If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has
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