Prophylactic rule

A prophylactic rule is a judicially crafted rule that overprotects a constitutional right, and gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right.^[1] An example is the case of Miranda v. Arizona which adopted a prophylactic rule (“Miranda warnings") to protect the Fifth Amendment right against self-incrimination. The exclusionary rule, which restricts admissibility of evidence in court, is also sometimes considered to be a prophylactic rule.^[2]

The notion of prophylactic rules is controversial. U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas have argued against them, writing that the ability of judges to create these rules "is an immense and frightening antidemocratic power, and it does not exist."^[3]

See also

• Implied powers
• Judicial activism

Footnotes

1. Caminker, Evan. “Miranda and Some Puzzles of ‘Prophylactc’ Rules,” University of Cincinnati Law Review (2001).
2. United States v. Herrera, 444 F.3d 1238 (10th Cir. 2006).
3. Dickerson v. United States, 530 U.S. 428 (2000) (dissenting opinion).