Remarks as member of symposium panel: Addressing Declining Rights in an Era of Declining Crime (Symposium: Constitutional Lawyering in the 21st Century)

I'm not sure that rights are in fact declining; actually, I think the scope of criminal defendants' rights is fairly stable. But even if I'm wrong about that, it's not much of a problem. The truth is, the debates of the last forty years about criminal defendants' rights, and the doctrinal pull and tug about how those rights are defined, are vastly less important than Supreme Court opinions or law review articles or, for that matter, conferences like this one would suggest.There are fundamental problems with the American criminal justice system - I want to list four, though alternative lists are certainly possible. But those fundamental problems have very little to do with defendants' rights, and very little to do with constitutional law as it's conventionally understood. For most of the past several decades, we've been arguing about the wrong thing. The left has argued for more and stronger rights, the right has argued for fewer and weaker rights, but both have agreed on the battleground - the battleground has been rights. It's the wrong battleground.