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There has long been a debate, among scholars and among the general public, about how the United States Supreme Court should interpret the Constitution. The debate has usually been couched in terms of a "strict constructionist" interpretation versus a more liberal or activist interpretation. The former is often described as "do exactly what the Constitution says; no more, no less" – the latter is described as "updating the Constitution for the modern world."
I won't end this debate here, but hope to shed some light on it. One example of the distinction was made in the mid-1960's, concerning the Miranda decision. A number of self-proclaimed "law and order" advocates complained that the decision (which forced police to warn suspects they were under arrest, that anything they said could be used against them, that they were entitled to an attorney, that if they could not afford one, an attorney would be appointed for them – we've all heard this from numerous TV shows) was unreasonable, since such a warning was not stated in the Constitution. They also made the assertion that this would make it harder to convict criminals – they could "get off on technicalities." At the time, I agreed with this reasoning. I have since changed my mind (even though I still consider myself a card-carrying "law and order" advocate). Under English rule, the American colonists were subjected to heavy taxation (without any say in what form, or how much, the taxes should be – "taxation without representation") and to laws which operated without due process. Part of the Declaration of Independence, in fact, mentions "depriving us in many cases, of the benefits of Trial by Jury." Unlike the French and Russian revolutions (which were about economics – they occurred because the desperately poor masses rose up to take a share of the obscene wealth the rulers alone possessed), the American revolution was about liberty. One of the reasons for the Miranda decision was that poor people were much more likely to be convicted of a crime than middle-class or rich people – even if their likelihood of guilt was the same. Another reason was that the police were not likely to extract a confession from the middle-class (or, especially, the rich) by intimidation or beating – but this was, in some jurisdictions, quite likely when the accused was poor. So there are two ways to look at it. The first is that liberties which were taken for granted when the Constitution was written – a legitimate trial by jury (as opposed to a kangaroo court), not being beaten by the police – were endangered by the time of the Miranda decision. It simply formally specified a right which had been there all along, but not been endangered when the Constitution was written. Since the U.S. was created to protect citizens from an all-powerful government, the Miranda decision was consistent with this thinking. Another way to interpret the decision is as follows. At the founding of the U.S., all citizens were treated equally under law (well, except for women, slaves, people who didn't own property . . . ). As time went on, the citizens of the U.S. decided that the principle of equal treatment should apply to more and more people – those who didn't own property, those who were black, those who were women, etc. Does anyone think this is unreasonable? Does anyone think that a Constitutional amendment was necessary to end slavery? It should have been a case of "the principles upon which this nation were founded are good; the founders goofed when they excluded blacks from these principles; we need to fix the problem." Instead, it took a civil war. Well, when the police could beat confessions out of people with impunity, it was a situation worse – in at least one respect – than slavery. At least slavery had existed at the founding of the U.S., and the founders (as wrong as they were) allowed it to continue. Even the founders didn't intend to allow police to beat suspects, though. Nor did they intend for people to be tried without access to attorneys; nor did they foresee a time when there would be a permanent underclass. So, without the Miranda decision, we would have needed a Constitutional amendment stating that the police can't beat suspects until they confess. Or, we could have waited until poor people, feeling they can't get a fair shake in the U.S., revolted. Elsewhere on this site I discuss how the low minimum wage, trade with low-wage countries, and an open-door immigration policy may yet lead – by causing a vast gap between rich and poor – to a violent revolution. Now, when police and prosecutors see their cases thrown out because they didn't Mirandize a suspect (or there were problems with a search warrant), they complain that the case should go forward because "they acted in good faith." EXCUSE ME – law enforcement has had almost four decades to figure out how to Mirandize suspects, and get proper search warrants. If they can't do it right by now, they should pick another profession. |
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