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Does your Miranda "right to remain silent" still exist?

That's the question for this week's Scripps Howard debate between Ben Boychuk and me, asked in the wake of the Supreme Court ruling this week that criminal suspects must speak up to claim their Fifth Amendment right against self-incrimination. My take:

The Supreme Court's ruling boils down to this: Police get to assume you don't want your Constitutional rights. The Miranda warning -- the one you've heard cops say on TV a million times -- is now essentially meaningless.
"Today's decision turns Miranda upside down," Justice Sotomayor wrote in her dissent. "Suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."
Imagine if the government treated our other Constitutional protections this way. Federal agents would be free to shut down church services unless prayer was preceded by a pastor's public statement that churchgoers were exercising their First Amendment rights. Newspapers and bloggers would have to print the First Amendment on their front page to stave off a crackdown against criticizing the president. Gun owners would have to sign documents affirming their Second Amendment rights, or the government would be free to seize their firearms.
Sounds ridiculous, even un-American, right? So why should the Fifth Amendment right against self-incrimination be treated differently? Why should the government get to assume that you don't want your rights? Yes, there is a public interest in investigating and prosecuting crimes. But the Founders knew that interest could be abused, which is why they limited the government's police powers in the Constitution. Police don't like that, of course, but they're not supposed to. They're supposed to obey the rules anyway.
Constitutional rights are something that all American citizens are supposed to have. We're not supposed to have to jump through hoops in order to keep them; the government is supposed to jump through hoops in order to take them away. The Supreme Court, ironically led by "small government" conservatives, has now ruled otherwise. The Tea Partiers who routinely decry government tyranny might want to take notice.


Anonymous said…
Is it anymore ridiculous then having to apply for a permit, go through a background check, and then wait a week to exercise your 2nd amendment right?
emawkc said…
I actually agree with you, Joel. Sadly, constitutional abuses have been ongoing for decades. It has become easier and easier for the government to ignore rights clearly set down in the Bill of Rights and now this decision helps legitimize even more abuses.

Ironically, it's just the kind of think the Bill of Rights was designed to guard against.

Of course, the silver lining is that we're getting closer to the bottom of the slippery slope.
Joel said…
Emaw: Nicely done on your Bill of Rights blog post. With your permission, I'll reprint some of it here...


With a complicit congress, our last few presidents have done a pretty good job of telling Bill of Rights to sod off. Let's review, shall we?

Free speech – Today you can be thrown in jail for videotaping your sister's birthday, or fined into poverty for endorsing a product on your blog. Hurray for free speech!

Bear arms – In a lot of places, you can still legally own a gun (at least for another year or two). Of course, "bearing" it will usually get you tossed in jail. Or worse.

No quartering – This is probably the only right that Americans still have intact. 1 for 3! Huzzah!

No unreasonable search – Oh sure, but what's a little domestic spying among comrades?

Due process – I guess you could say that the city of New London, Conn., went through due process before condemning, confiscating, and destroying Suzette Kelo's home at the request of a large pharmaceutical corporation. Of course, you would totally be wrong despite what the Supreme Court says.

And don’t even get me started on the whole red light camera scam.

Speedy trial – I wonder what the kind gentlemen at Guantanamo Bay would say about this.

Civil trial by jury – With the low level of education in this country, I'm not so sure this is a right you would want to exercise. Besides, with the country simultaneously becoming both a police state and a nanny state, this one probably won't last long.

No cruel punishment – Well, unless you happen to be a "enemy combatant."

Rights not enumerated – Just to review, the founders were saying that, just because we're layin' it down that we have these rights in these 10 amendments, don't assume that we don't also have other rights that we haven't mentioned. Like, maybe, the right to keep the money we earn at our jobs.

Powers of States and people – Again to review, the founders are saying that if the Constitution doesn't say the Federal government can do something, then the Federal government can't do it. For example, neither the constitution nor any of the amendments thereof mention anything about spending $650 million to make sure everyone has a digital television converter box.


There are bits here I'd nitpick. But like I said, a good overview.
Anonymous said…
I hate the fact that you automatically put down the men who are sworn to uphold the law. Quote "Police don't like that, of course, but they're not supposed to" referencing the limit of government's police powers in the Constitution. Ironic, isn't it, that you invoke the constitution when it suits you. Most officers obey the laws; you want to bend them to your benefit.Too many individuals are schooled in the ways of defying the laws of the land. Why give them more ammunition? THE FACT THAT THE SUPREME COURT IS SUPPOSED TO INTERPRET THE LAW OF OUR LAND, NOT CREATE MORE LAWS SEEMS TO HAVE FALLEN ON DEAF EARS.
Joel said…
Anon: I have the utmost respect for men and women who uphold the law in a lawful manner. But police power -- the power to deprive citizens of their liberties and even their lives -- is awesome power, and I make no apologies for favoring checks and balances on that power in order to preserve the civil liberties of my fellow citizens.

I'm not attacking the police; I am criticizing their ability and desire to treat civil liberties cheaply. Cheaply invoked martyrdom -- you're attacking the people who uphold the law! -- isn't really an argument against that.

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