May 06, 2003

Miranda Once Again

Juan Non-Volokh complains (I think justifiably) that I have misinterpreted him. When he says that Miranda v. Arizona is "outrageous," his outrage refers not to the substantive result but to the procedural process. What he finds appalling is not that police must inform suspects of their rights (which would be perfectly fine, and probably good, if a state legislature or a state police chief were to require it), but rather that the Supreme Court is extending its tentacles down into every single officer-suspect confrontation in the entire United States, and does so without adequate warrant for such a reach in legal precedent.

But this seems grossly inadequate to me. The existence of a right implies the existence of a remedy--of courts or other instrumentalities that will vindicate that right. When Earl Warren and company issued cert in Miranda v. Arizona, where were the alternative courts or other instrumentalities that would vindicate citizens' rights not to be compelled to bear witness against themselves?

In the absence of other instrumentalities it seems clear to me that--if the Constitution is indeed the Supreme Law of the Land rather than a set of Dutch-uncle exhortations to be ignored by legislatures--the federal judiciary must enforce the Supreme Law of the Land, or it will not be enforced at all. To say that you disapprove of the only way to vindicate Constitutional rights seems to me to place an incomprehensibly heavy weight on the procedures rather than the substances of the law. I don't see anything in the Constitution that states that courts must "strictly construe" and limit their powers in order to make citizens' rights null and void

Posted by DeLong at May 6, 2003 10:04 PM | TrackBack


"The existence of a right implies the existence of a remedy..."

Not so. At a minimum all a right requires is that nobody will systematically and positively obstruct your own efforts. That leaves enforcement to you, but it makes that practical as you don't have to look over your shoulder while you do so. Think of the right of self defence.

Of course, many "rights" have been delegated (not always freely), and then all those other things come in - but they are emergent, from the things that they got delegated to, and not from the rights themselves. And, of course, a system of mutually supporting rights also produces emergent stuff - but in essence a right is like a permission that does not have to be granted and is not graciously given by a granter.

Posted by: P.M.Lawrence on May 6, 2003 10:49 PM

"The existence of a right implies the existence of a remedy," kee-rect, and, denial of the consequent, the absence of any but man made remedies demonstrates that "rights" are nothing but rhetoric unless they're enforced.

Yer problem with a centralised Supreme Court, it seems to me, is that it's a single point that can be captured by a motley crew of vicious thugs and crazed ideologues. You might even get a Chief Justice who was both.

Nawww. Never happen.

Posted by: David Lloyd-Jones on May 7, 2003 02:43 AM

One of history's little ironies is that Earl Warren was a career prosecutor with a record of employing constitutionally-dubious tactics. He was a practical man who was very familiar with the real-world behavior of cops and prosecutors, and decisions like mapp and Miranda relfect that.

The fact of the matter is, before decisions like Mapp and Miranda, police and prosecutors were much more likely to engage in unlawful behavior than they are nowdays. Any evaluation of such decisions as precedent at this point has to start with the fact that they were relatively successful.

As far as whether the Court properly had the power to fashion a rule like Miranda, (1) Cosnervatives nowdays like to disregard the fact that the traditional role of the judiciary, dating back to the Middle Ages, includes making law on a case-by-case basis, and (2) it is by no means extraordinary for a court to conclude that certain rights cannot be waived except on a showing that the waiver is knowing and truly voluntary, or to formulate a prophylactic rule requiring a certain procedure to be followed before any such waiver is effective.

Posted by: rea on May 7, 2003 07:40 AM

The traditional role of the jury to decide applicability of the law to the case at hand is also widely resisted by all permanent participants of the judiciary, from judges, lawyers and legislators.

This history of the jury in English and early American Common Law show this to be an essential power for juries to possess.

This is the dreaded 'jury nullification' principle, and it, like Federalism ('States Rights') is used as a buggaboo by both those who misunderstand them, and those with particular power niches to preserve.

Combined with the stretching of the Commerce Clause beyond all recognition since WWII (best exemplified by the travesty of the Drug War), you quite simply end up with the increasingly imperially minded (and acting) Federal Regulatory Regime we have evolved into, and quite frankly not much left of the Republic.

Oh, and the cops here in Tucson have become very strict observers of suspects' rights, and are generally considered to be pussy cats in comparison to before Miranda, which was a local case. Oh that the local FBI were so nice.

Posted by: David Mercer on May 8, 2003 12:52 AM
Post a comment