All things considered, it’s probably a good thing that police inform the people they arrest of their rights before questioning them. If I were arrested, I’d want to know my rights — insofar as I have any left — before spilling my guts to the cops. But just because it’s a good idea doesn’t mean it is or even ought to be in the U.S. Constitution — which is why this week’s Supreme Court decision upholding the Miranda Rule is full of hooey.
You could have guessed it was full of hooey because of the way the major newspapers drooled and dripped all over it. The Court refused “to overturn more than three decades of established law enforcement practice,” the Washington Post gasped in reporting the ruling. The New York Times was hardly less gushy, mooing over the Court’s upholding what it called “one of the most famous rulings of modern times.” The Constitution these papers recognize, you see, is the one that reads merely, “If you like it, it must be so.”
Well, sometimes their Constitution also reads, “If it’s been established for a long time, it must also be so.” That’s what the Constitution said this week, and even the Court agreed. “Miranda,” pronounced Chief Justice William Rehnquist in his decision, “has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Therefore, you see, it must be in the Constitution — at least this week.
But that’s not what the Constitution always says. Sometimes, when we’re talking about state laws that outlaw abortion or enforce racial segregation or ban pornography or outlaw burning the American flag or deny “rights” to homosexuals, it doesn’t matter at all whether a law or practice is “embedded” in the practice of local and state communities and their laws.
In these cases, “refusing to overturn more than three decades” of precedent is simply living in the past, refusing to understand that the Constitution is a living document, being ruled by dogma and prejudice, and other evil things. It’s really hard to tell what the Constitution says one week as opposed to what it says the next week. I guess that’s why you have to go to law school to understand it all.
In the case of the Miranda ruling of the Warren court, which pitched out precedent after precedent simply because they failed to conform to the leftist ideology of most of the justices, the original decision pitched out hundreds of years of police practices that also were “embedded” in our national culture. If today we all know the scenes where the cops read the bad guy his rights, back then we all knew the scenes where the cops gave the bad guy the third degree, sweating the truth out of a hoodlum under a bright light while he begged for a cigarette.
It remains unclear exactly how much damage the 1966 Miranda ruling ever did to law enforcement. Miranda himself, a petty kidnapper and rapist, was convicted despite the rejection of his unsolicited confession. Some crooks probably got off because their lawyers pulled the Miranda Rule out of their briefcases, but overall it’s probably not too hard for the police to remember to read the formula when they make a bust.
The real damage the Miranda ruling does is probably not so much to the legal cases against real criminals as to the Constitution itself. Despite the Court’s claim this week that the Miranda Rule is “rooted in the Constitution,” you could have fooled all the people who actually drafted and ratified the Constitution, as well as virtually every lawyer and judge who ever studied it until the Warren gang got hold of it. Miranda is merely one more instance of the irresponsible, unconstitutional and actually dangerous mentality that prevailed in the Court then and comes close to prevailing today.
It’s a mentality that’s irresponsible, unconstitutional and dangerous precisely because it insists on smuggling into the Constitution concepts that have legal force that are not there at all and were never put there by the people who wrote the law or the people who adopted it. The mentality that lies behind Miranda is a mentality that brazenly denies the very concept of the consent of the governed.
The Court’s refusal to reject Miranda tells us little about the merits or flaws of the police practice of informing those they arrest of their rights, but it does tell us a lot about the Court’s other and more important refusal, to reject the lawless mentality that generated Miranda and many other bad laws and has today virtually destroyed the Constitution — which is why neither you nor I nor much of anyone else in this country has very many rights left.