Indeed anything you say to the cops without a lawyer won’t do you any favors. Yes, when getting interrogated we can get flustered and forget the 5th and 6th Amendments and incriminate ourselves, and we are less likely to do that when given a brief Con Law lesson by the police. Therefore, to help align ourselves to the Constitution, the Miranda warning sounds like the sort of thing we as a society ought to have in place. And perhaps with some sort of public safety exception in extreme cases like needing to extract information from a wounded terrorist about there being any other bombs lying around, and still be able to use that and any further evidence stemming from such statements against him in court. I don’t care much either way but that’s all fine with me, just do whatever you got to do to eliminate the danger and then eliminate this man’s freedom, perhaps his life as well.

miranda-missile

What I don’t like about Miranda is that, like Roe v Wade any so many others, most people associate it as being a “law of the land.” But they are not laws – they are court opinions. Parenthetically, in the case of Roe, it was not even a legal case, rather it was an unconstitutional advisory opinion on a moot matter (Roe had already given birth, nothing left to resolve), also in stark conflict with the Court’s own political question doctrine, a 220 year old precedent they came up themselves with when they refused to clarify a constitutional question George Washington asked. The Supreme Court is part of the judicial branch of our government, not the legislative, and the Constitution does not afford the Supreme Court the right to make such laws and conversely does not afford the legislative branch the power to decide cases.

Hey, I’m as pro-abortion and anti-gun as you can get, but not only was Roe a ludicrous decision, the feds have no business in abortion rights legislation (or judicial enforcement precedent-setting). Another example of the Court forgetting its role and pulling arbitrary laws out of its ass was United States v Miller in which the Court effectively outlawed sawed-off shotguns, citing an imaginary lack of evidence that the possession and use of shotguns with barrels shorter than eighteen inches would be helpful to militias. Putting aside whether or not that’s true — eighteen inches? I don’t like sawed-off shotguns any more than the next guy, but where do you get eighteen? Because it’s a multiple of six? Voting age?

The judicial branch does not – should not — get to draw the line at eighteen inches, two trimesters, if there’s a difference between searching and frisking and what specifically must be recited by the police to ensure a suspect fully understands his rights – and in what circumstances, like this Boston Marathon suspect apprehension from last night, should a “public safety” exception be made. If those are things we as a society want, then we can vote for lawmakers, not politically-insulated yet nonetheless-politically-energetic Supreme Court justices, accordingly. It does not get to make up things that don’t exist in the Constitution, like the right to privacy. Not its job to grow hairs to name and split. Moreover, its job description is replete with language that it should steer clear of that behavior. Its purpose is academic; it is not to guide us through social progress. To clear things up, not to make things up.

Back to my article’s title, while not reading the suspected bomber his Miranda warning was indeed in compliance with the so-called public safety exception and also arguably common sense given the circumstances, most people don’t know that. Therefore I suspect civil liberty alarmists will shine light on this, inadvertently resulting in the debate of whether or not we ought to have Miranda warnings at all being put back on the table, a trial of this man hits a Miranda obstacle, eventually, maybe, resulting in the Supreme Court undoing their damage because they don’t want to be ridiculed for not hanging this man high, as he deserves to be. Then the notion of the practice of police having to remind suspects that they ought to shut up is handed to the states’ elected legislative bodies to decide for themselves.

It’s judicial activism itself that should be put under public scrutiny. But I’m trying to be a little realistic here.

Doug Simmons

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