Waiver of Constitutional Rights

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A potential beneficiary may waive almost any constitutional claim. Rights not of constitutional dimension also may be waived. The Supreme Court has struggled with the questions whether any special doctrine governs waivers of constitutional rights and, if so, whether the special doctrine applies to all constitutional rights. These waiver issues, like much of the rest of constitutional law, took on massive new proportions with the rapid expansion of constitutional rights in the 1960s and 1970s. Prior to that era, there were relatively few rights eligible for waiver.

Distinctions between waivers of constitutional rights and waivers of other rights do not appear in very early cases. The most frequent waiver issue probably was whether a civil litigant had waived the seventh amendment right to trial by jury. Hodges v. Easton (1882), a case raising this issue, was the setting for one of the Supreme Court's important statements concerning waiver. In Hodges the Court acknowledged that litigants may waive the right but cautioned, in an oft-quoted statemt that seemed to contemplate special treatment for waivers of constitutional rights, that "every reasonable presumption shold be indulged against … waiver."

Then, as later would be true, there seemed to be a gap between the Court's statement of the waiver standard and its application of the standard in deciding cases. The Court's casual attitude toward waiver emerged in Pierce v. Somerset Railway (1898) and Eustis v. Bolles (1893), in which the Court found waivers of claims that state laws unconstitutionally impaired the obligation of contract. In each case not only was "every reasonable presumption" against waiver not indulged; the Court went so far as to indicate that a state court's finding of waiver of constitutional rights did not even raise a federal issue reviewable by the Supreme Court. It may be, however, that the Court was insufficiently attentive to differences between the waiver issue and the existence of an independent and adequate state ground for decision, which would preclude Supreme Court review of the state court's judgment.

Although the Court had not become deeply involved in waiver issues, the legal community knew that waiver doctrine might have to be attuned to differences among constitutional rights. Through eight editions from 1868 to 1927, thomas m. cooley's treatise on constitutional law acknowledged that litigants may waive constitutional rights but it stated that in criminal cases this "must be true to a very limited extent only." Subsequent Supreme Court waiver doctrine at first would adhere to, and later partially undermine, Cooley's suggested distinction. But in his time, Cooley, himself a state supreme court justice, was on safe ground. As long as there were few constitutional rights regulating criminal procedure, one easily could limit their waivability.

The Court became more involved with waivers of constitutional rights in the 1930s. In Aetna Insurance Co. v. Kennedy (1937) and johnson v. zerbst (1938), cases raising civil and criminal procedure waiver issues, the Court seemed to indulge presumptions against waiver. And Johnson v. Zerbst supplied a new guiding rhetoric. Waiver required "an intentional relinquishment or abandonment of a known right or privilege." Again, though, the Court's articulated waiver standard sometimes was difficult to reconcile with the standard it applied. In Rogers v. United States (1951) a grand jury witness who answered many questions was held to have waived her Fifth Amendment right against self-incrimination with respect to additional information.

The 1930s doctrinal seeds restricting waiver flowered in the 1960s. The most significant waiver developments concerned the question of a state criminal defendant's waiver of the right to assert a federal constitutional claim in a federal habeas corpus proceeding. A habeas corpus case, fay v. noia (1963), became the touchstone for analysis of waiver of constitutional rights. Fay reaffirmed Johnson v. Zerbst 's waiver standard and required a conscious decision to forgo the privilege of seeking to vindicate federal rights. On the language of Fay, accidental waivers seemed impossible. The Court's reluctance to allow waivers of constitutional rights reached a high point in miranda v. arizona (1966), when the Court required that police inform suspects of their constitutional rights to assure that any waiver would be knowing.

The late warren court's reluctance to allow waivers of constitutional rights contrasts with the burger court's attitude. In one respect, a retreat from the 1960s standard seemed inevitable. For Fay and Johnson soon collided with the realities of the American criminal justice system. Through the plea bargaining process, the entire system depends upon widespread waivers of constitutional rights. In the trilogy of McMann v. Richardson (1970), Parker v. North Carolina (1970), and Brady v. United States (1970), holdings difficult to reconcile with the Fay-Johnson standard, this reality took hold. The trilogy effectively made a plea of guilty a waiver of nearly all constitutional procedure rights, known or unknown.

Another waiver issue, one with perhaps less of a foregone conclusion, further signaled the Court's shift in attitude. The fourth amendment guarantees the right to be free of unreasonable searches and seizures and often requires police to obtain a warrant before conducting a search. For many years there was doubt about the relationship between searches conducted with consent, which need not comply with the Fourth Amendment's warrant requirement, and the concept of waiver. If consent were equated with a waiver of Fourth Amendment rights, then the Johnson standard seemed applicable. But since few who consent to searches are informed of their Fourth Amendment rights, it was difficult to characterize any waiver as knowing. The widespread practice of consent searches seemed to hang in the balance.

A Court reluctant to allow waivers of constitutional rights might have adopted the Miranda -like solution of generally requiring the police to inform suspects of their Fourth Amendment rights before obtaining consent to a search. In schneckloth v. bustamonte (1973) the Court, opting for a different extreme, preempted most Fourth Amendment waiver problems. It found that the Johnson standard had, almost without exception, "been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." Fourth Amendment claims were held not to be subject to the knowing and intelligent waiver requirement.

Schneckloth 's reasoning may have implications for other constitutional rights. It suggests that rights other than those relating to a fair trial are subject to a waiver standard more lenient than the Johnson test. But it did not signal a wholesale retreat from Johnson. After Schneckloth, in cases such as edwards v. arizona (1981), the Court reaffirmed that the Johnson standard governs waivers of the right to counsel.

In wainwright v. sykes (1977), where the Court squarely confronted Fay, it further limited 1960s waiver doctrine. Under Wainwright, failure to comply with state procedural rules effectively waives the right to raise a constitutional claim on federal habeas corpus. A habeas applicant must both explain his failure to comply with state procedures and show that his case was prejudiced by the constitutional flaw. The Court rejected Fay 's requirement of a knowing and deliberate waiver. In effect, the burden of proving nonwaiver had been placed on the defendant.

The waiver question also continued to arise in contexts not involving criminal procedure. In D. H. Overmyer Co. v. Frick Company (1972) and Swarb v. Lennox (1972) the Court reconfirmed earlier holdings that at least some civil litigants may contractually waive due process rights to notice and hearing prior to a judgment and thereby effectively waive the opportunity to contest the validity of a debt. In Parden v. Terminal Railway (1964) states may have been surprised to learn that certain activities effectively waived their constitutional immunity from suit in federal court. For many years prior to Parden, it appeared that only an express waiver by states would be effective. But the Court found that by operating a railroad in interstate commerce, a state effectively waived its immunity from employees' suits in federal court under the federal employers liability act. Parden 's reach was limited by Employees v. Department of Public Health and Welfare (1973), which refused to rely on the fair labor standards act to subject states to federal damage suits by employees. More important, edelman v. jordan (1974) held that state participation in a federal program did not amount to consent to suit in federal court on claims relating to the program.

Theodore Eisenberg


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Tigar, Michael E. 1970 Foreword: Waiver of Constitutional Rights: A Disquiet in the Citadel. Harvard Law Review 84: 1–28.

Tribe, Laurence H. 1978 American Constitutional Law. Pages 133–138. Mineola, N.Y.: Foundation Press.