Miranda: Good for Screenwriters, Bad for the Constitution
Yesterday was the 47th anniversary of Ernesto Miranda’s arrest on rape and abduction charges – an event that led to one of the Warren Court’s more ambitious pieces of judicial legislation. Miranda’s initial conviction was overturned when SCOTUS invented a constitutional right to a highly specific set of warnings to be read to suspects before they confess. (Miranda himself was later re-tried and convicted).
In the 2000 case of Dickerson v. US, the majority of the Court acknowledged that Miranda warnings aren’t exactly spelled out in the Constitution, but held that Miranda v. Arizona is a “constitutional decision,” which is as authoritative as the Constitution itself. In dissent, Scalia rightly blasted the majority for assuming “immense and frightening antidemocratic power," i.e. the power to void state and federal laws for inconsistency with the Supreme Court's policy preferences.
Of course, I can hear the liberals howling “conservatives want to get rid of Miranda warnings!” No: I only want to get rid of the spurious notion that there is a constitutional right to such warnings. If Miranda warnings are good policy, no doubt our elected representatives will enact them. Isn't that what we elected them for?
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Sep '10
Re: Miranda: Good for Screenwriters, Bad for the Constitution
I was thinking about this a while back. It is funny you mention "good for screenwriters," I have seen references to some kind of "Miranda" rights told to suspects in movies from the 1940s, which made me think that they must have been passing those laws/procedures around the nation well before the 1960s.
Re: Miranda: Good for Screenwriters, Bad for the Constitution
One interesting backstory is that the Miranda warning was drawn in good part from an existing FBI practice under J. Edgar Hoover. There are a few footnotes to Hoover in Earl Warren's majority opinion, and this reference in the text:
It goes on for quite a bit more. Interesting reading.
Feb '11
Re: Miranda: Good for Screenwriters, Bad for the Constitution
"If Miranda warnings are good policy, no doubt our elected representatives will enact them."
You're being sarcastic, right?
Jun '10
Re: Miranda: Good for Screenwriters, Bad for the Constitution
The Miranda warnings are an efficient means of avoiding factual issues of "knowing" waiver of important rights. The system seems to have adapted, the prisons are full, all is well.
Re: Miranda: Good for Screenwriters, Bad for the Constitution
I've spent part of the past week lolling on the sofa, watching old movies. (Stomach bug; don't ask.)
I've got this cool DVD set of film noir masterpieces, all of them filmed before the Miranda decision. And in almost every one, at least one of the bad guys snarls at the cop, "Hey! I know my rights!"
So even without Miranda, the bad guys -- and the screenwriters -- knew their rights.
Re: Miranda: Good for Screenwriters, Bad for the Constitution
I understand your point Adam and probably agree, but let us conservatives see if we are consistent.
Remember the boy scout case that said they don't have to admit gays? Or the cases that say the Hibernians don't have to let gays march in the St. Paddy's Day Parade?
They were decided on a 1st Amendment Right of "Freedom of Association."
Here is the text of the 1st:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It's not in there.
So what say we conservatives? Do we call for the overturn of the above cases because Freedom of Association is not explicitly spelled out in the 1st Amendment and therefore these are "Constitutional Decisions?"
Was Scalia showing “immense and frightening antidemocratic power" when he joined in the majority opinion in the Boy Scout case?
Edited on Mar 14, 2011 at 5:18pmFeb '11
Re: Miranda: Good for Screenwriters, Bad for the Constitution
I'll concede there's no constitutional right to have Miranda warnings read; but I still thrill to hear them, even on the cheesiest [we're talking CSI Miami here] television show. Total poetry.
Edited on Mar 14, 2011 at 8:05pmRe: Miranda: Good for Screenwriters, Bad for the Constitution
Susan S: I'll concede there's no constitutional right to have Miranda warnings read; but I still thrill to hear them, even on even the cheesiest [we're talking CSI Miami here] television show.
Total poetry.
· Mar 14 at 5:48pm
I'm not going to link a video of it because of the naughty words but I love the scene from lethal weapon 4 (I think it is 4) when Chris Rock is giving Miranda rights. Hysterical.
Feb '11
Re: Miranda: Good for Screenwriters, Bad for the Constitution
"Chris Rock is giving Miranda rights."
Hey, thanks for killing my misty libertarian reverie! But yes, that scene is totally hilarious.
Jul '10
Re: Miranda: Good for Screenwriters, Bad for the Constitution
I think where things become muddied is in the fact that the Miranda decision did not say that a suspect must be informed of his (or her) rights, they must be READ.
That's right, if you don't read them off of the card it's null and void. At that point I start to beleive that they 've gone a tad bit over the cliff. Reminds me of the Murder Case in Milwaukee where they tried to have the evidence thrown out because the police filed the search warrent with the wrong form. (It was like a 1346-D as opposed to a 1346-M form or some such.) Fortunately SCOTUS decided that as long as law enforcement didn't show blatent disregard for a suspects rights, the particular form used was unimportant.
Re: Miranda: Good for Screenwriters, Bad for the Constitution
Tommy De Seno: I understand your point Adam and probably agree, but let us conservatives see if we are consistent.
Remember the boy scout case that said they don't have to admit gays? Or the cases that say the Hibernians don't have to let gays march in the St. Paddy's Day Parade?
They were decided on a 1st Amendment Right of "Freedom of Association."
Tommy, I grant you that judges have to apply law to the facts of a particular case. But it is one thing -- I submit -- for a judge to uphold a group's freedom to assemble with whom they choose, based on the explicit guarantee of a "right peaceably to assemble." It is something else for a court to take the 5th Amendment's guarantee against self-incrimination and legislate a highly specific procedure. And then to decide that that specific procedure is as sacrosanct as the text of the Constitution itself. That's bootstrapping of the first order!
Re: Miranda: Good for Screenwriters, Bad for the Constitution
Thanks, Bill. That is interesting. The fact that Earl Warren and Hoover agreed on the desirability of Miranda-type warnings suggests they are good policy. But, of course, that doesn't mean they're required by the Constitution. That's the fallacy of constitutional jurisprudence starting with the Warren Court -- if we like it, then the Constitution must require it!
Re: Miranda: Good for Screenwriters, Bad for the Constitution
Adam Freedman
Tommy, I grant you that judges have to apply law to the facts of a particular case. But it is one thing -- I submit -- for a judge to uphold a group's freedom to assemble with whom they choose, based on the explicit guarantee of a "right peaceably to assemble." It is something else for a court to take the 5th Amendment's guarantee against self-incrimination and legislate a highly specific procedure. And then to decide that that specific procedure is as sacrosanct as the text of the Constitution itself. That's bootstrapping of the first order! · Mar 14 at 7:46pm
That's a good point, Adam.
One other interesting thing about Miranda's case if I recall correctly is that even after they threw out his confession because he didn't know his rights before confessing, they still convicted him on the other evidence they had.
I guess that would cut toward the argument that folks make too much out of the importance of Miranda readings in the large scheme of things.
Aug '10
Re: Miranda: Good for Screenwriters, Bad for the Constitution
The right to peaceably assemble implies a right to assemble for a purpose, not just to hang around on the street with whomever happens to be there at the time. To assemble for a purpose means to exclude those who are at cross-purposes. To force people to accept people who disagree with them in their midst renders the "right to assemble" moot.
A similar case could be made for the rights of the accused, on the ground that the right becomes moot if someone is unaware of it. And I don't think anyone, even in law enforcement, is arguing against Miranda because they are hoping to trick people into abandoning their rights. But if someone doesn't know he can have a lawyer, that doesn't automatically mean that any statement he makes should be disallowed as evidence. That argument presumes that police perfidy is the norm, not the exception.
Re: Miranda: Good for Screenwriters, Bad for the Constitution
Paul I don't diagree with any of your analysis.
But Freedom of Association is NOT in the Constitution. Yet Scalia has declared it a fundamental right, I guess found somewhere in a penumbra of Free Assembly.
How can he abhor finding rights on words that don't exist in the constitution on the issue of abortion and Miranda rights, but do so himself on Free Association, without being labeled a hypocrite?
Forget which is good or bad policy. That's not the point. The point Scalia made is an attack on the Democratic process. I agree with him. He apprantly doesn't agree with himself.
Edited on Mar 16, 2011 at 4:30amAug '10
Re: Miranda: Good for Screenwriters, Bad for the Constitution
I don't think you got my point, Tommy. The right to peaceably assemble is in the Constitution, but that's a pointless phrase unless it means the right to assemble like-minded people and exclude others from the assembly.
I believe in interpreting the words of the Constitution so that they aren't drained of meaning. For instance, the commerce clause lists the commerce that may be regulated, so forms of commerce that aren't listed (i.e., intra-state) may not be regulated, or they would have simply written "commerce" with no qualification. Similarly, the Constitution prohibits "cruel and unusual punishment". That either means that it prohibits cruel punishment and prohibits unusual punishment, or that it prohibits only punishment that is both cruel and unusual. Since the former would imply that no new form of punishment could ever be imposed, it must mean the latter. To say (as liberals tend to) that it prohibits cruel punishment but not unusual punishment makes the word "unusual" superfluous. So it must allow punishment that some would like to brand as cruel (e.g., hanging), as long as it has already been commonly used.