Overenforce

The application of substantive canons typically overenforces the Constitution. But because overenforcement in the context of statutory interpretation clips congressional prerogatives much less than overenforcement in the context of judicial review, the application of substantive canons is not in direct conflict with the limitations upon judicial review.

I don’t know if it’s underenforcing or overenforcing the law. But, at least in the data, we see that Black officers are less likely to make a drug arrest than the others.

By way of example, she has called the Miranda doctrine, the principle that all criminal suspects must be advised of their rights upon arrest, an example of “the court’s choice to overenforce a constitutional norm” that goes beyond constitutional meaning and claimed that this canon “inevitably excludes from evidence even some confessions freely given.”

A series of cases limited the power of the state to express a religious point of view. But then state and local governments overcorrected. They overenforced the establishment clause and violated the free speech and free exercise clauses by taking aim at private religious expression.