- The Washington Times - Tuesday, December 14, 1999

What Oliver Crom-well said of the British Long Parliament might be said of the Supreme Court’s 33-year-old, extra-constitutional, police interrogation ruling in Miranda vs. Arizona (1966): “It has sat undisturbed for all the good it has been doing lately; it should depart as a precedent,and let us have done with it; in the name of God, it should go.”
Last week, the Supreme Court set the stage for honoring that reproach by agreeing to decide Dickerson vs. United States, a case challenging the constitutional moorings of Miranda. That 5-4 precedent, authored by Chief Justice Earl Warren, generally conditions the admissibility of voluntary and reliable custodial confessions in criminal prosecutions on police recitation of prior Miranda warnings: namely, that the Fifth Amendment guarantees a right to silence; that anything said might be used against the suspect; and, that the detainee enjoys a right to counsel, which will be supplied by the government in cases of indigence.
In the aftermath of Miranda, a disgruntled Congress enacted a 1968 law that reinstated the previous voluntariness test for the admissibility of confessions in federal prosecutions. For more than three decades, however, the Justice Department has ignored the law and celebrated Miranda. That neglect itself is worrisome because the department’s longstanding custom has been to defend the constitutionality of every federal statute but for the flagrantly invalid. The obligation stems from the president’s constitutional responsibility to “take care that the laws be faithfully executed.” Attorney General Janet Reno, however, has scoffed at supporting the voluntariness law; indeed, she is assailing its validity.
In this day and age, to find proponents of Miranda as a Fifth Amendment imperative is like espying a dog walking on its hind legs. The task is not done well; but you are surprised to find it done at all.
The Fifth Amendment endows every suspect with a right not “to be compelled in any criminal case to be a witness against himself.” It would seem self-evident that the admission of a confession determined voluntary, not compelled, by a court is constitutionally untroublesome. But lawyers, judges and presidents alike are adept at discovering ambiguities and imponderables in language where the meaning is obvious. Even the interpretation of words like “is” and “alone” have been hotly contested.
In the Miranda opinion, Chief Justice Warren demoted the Constitution to a minor supporting role, an irksome idiom of his decisions generally. During oral argument, the chief justice was wont to ask not whether a practice was constitutional, but whether it was viscerally “fair” or “just,” as if he were crowned to second-guess the Founding Fathers.
Warren found traditional police interrogation practices sinful not because of brutality, but because “human dignity” was insufficiently honored. He deplored techniques that elicited voluntary and truthful confessions that trade on psychological weaknesses, like the questioning of Raskolnikov by Porfiry Petrovitch in Feodor Dostoevski’s “Crime and Punishment.” The idea that reliable verdicts promoted by voluntary and accurate self-incriminating statements deserved applause seemed outdated to Warren in the Great Society delirium of the 1960s. The Chief Justice thus drafted Miranda warnings as a set of Queensberry rules to govern police interrogation of detainees.
Inexactitude of expression was a signature feature of Miranda’s author, and that the opinion can be read as both constitutional and extra-constitutional is unsurprising. But all doubt has been dispelled in favor of the latter by sequel decisions. Thus, in Michigan vs. Tucker (1974), then Associate Justice William H. Rehnquist explained that Miranda warnings “were not themselves rights protected by the Constitution but were instead measures to ensure that the right against compulsory self-incrimination was protected.” The high court repeated in New York vs. Quarles (1984) that Miranda warnings are “prophylactic,” not rights grounded in the Constitution. And for slow learners, the court, speaking through Justice Sandra Day O’Connor in Oregon vs. Elstad (1985), again explained that the “Miranda exclusionary rule … sweeps more broadly than the Fifth Amendment itself.” Nothing the court has said since casts doubt on these unambiguous and authoritative characterizations of Miranda as judicially contrived, not constitutional, impositions.
Miranda apostles, nevertheless, urge that the police generally praise the decision and that its warnings are enlightened policy. Thus, it is said, an overruling would be foolish. The observations are irrelevant even if true. Congress, state legislatures, and municipalities would be free to retain Miranda warnings by statute or ordinance even if the court abandons them as Fifth Amendment commands.
Of course, if the warnings left law enforcement unimpaired either because suspects routinely waived their right to silence or otherwise, then Dickerson is much ado about nothing, a scholastic quarrel among constitutional wizards. But Utah Law Professor Paul G. Cassell, appointed by the Supreme Court to defend the 1968 voluntariness law, has persuasively demonstrated a non-trivial plunging of arrests and convictions caused by Miranda.
Shouldn’t local communities and police most directly affected by crime, not the court, decide whether to impose non-constitutional rules that handcuff investigations despite the obstruction to apprehending and convicting criminals?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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