Joel Jacobsen

In The Federalist 48-51, Madison brilliantly filled in the gaps in Montesquieu's doctrine of the distribution of powers.  Those numbers of The Federalist are a Rosetta Stone for anyone wishing to interpret the political significance of any judge's ruling in any case, civil or criminal.  

The United States Constitution has only one subject: power.  It distributes power between the states and the central government, and then divides the central government's share of power between its three branches, and then it limits the government's use of power against its citizens. 

Necessarily, then, every constitutional ruling by a court is a ruling on the distribution of powers.  It's an application of -- or an adjustment to -- Madison's ideas. 

The Declaration of Independence held it to be a self-evident truth that the only legitimate basis for government is the consent of the governed.  The underlying democratic theory of the Constitution is -- can only be -- that the people of the United States agreed to put certain subjects beyond the reach of alteration by democracy.   That is, they democratically chose to limit their democracy.

This means that the very concept of a new constitutional doctrine is a paradox.  If it's new,  then by definition the governed did not consent to it when they accepted the Constitution and its amendments as a limitation on their power to govern themselves.     

America's criminal justice system once said: "If we catch you doing something terrible to another human being, we will  punish you."  Now it says: "If we catch you doing something terrible to another human being, we may -- or may not -- punish you."  The contingency was introduced by judges who discovered that the Constitution gave them previously-unrecognized power to conceal information from juries (to "suppress evidence"), and to refuse to enforce democractically-enacted laws (to "find them unconstitutional").   

The switch from an unconditional to a conditional criminal law was announced by judges as a series of new constitutional doctrines, a process that began in earnest in the 1950s and continues to this day.  Because our criminal justice system was transformed by constitutional rulings, it cannot be changed back by democratic means.   American citizens no longer have the political power to decide for themselves how to use the powers of government to protect themselves from physical harm. 

The "constitutionalization" of criminal procedure was not simply a revolution in the practice of criminal law, but a fundamental reordering of society.  It was -- and is -- a process of de-democratization.