Liberty or Laws?
“nor shall be compelled in any criminal case
to be a witness against himself”
Does the Fifth Amendment Stop at Miranda?
Outpost of Freedom
June 6, 2016
The principle element in this discussion is the Fifth Amendment to the Constitution:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
The provision that is of concern is, “No person… shall be compelled in any criminal case to be a witness against himself.” And, we must begin by understanding that, as the Preamble to the Bill of Rights says,
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Clearly, the Fifth Amendment, then, is a prohibition against the government, “to prevent misconstruction or abuse of [the federal government’s] powers”
To understand the role of the Supreme Court, at least for nearly the past century, we need to review what Justice Brandeis explained in Ashwander v. Tennessee Valley Authority (1936), in which he explained the “rules” that the Court had adopted to avoid “passing upon a large part of all constitutional questions pressed upon it for decision.” (See About Ashwander v. TVA)
The pertinent rules from that decision are:
2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it… ‘It is not the habit of the court to decide questions of a constitutional nature unless necessary to a decision of the case…
3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied….
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.
7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided…
To summarize the pertinent rules:
- The Court will not decide on the constitutionality, unless absolutely necessary – rules 2 & 4.
- When the Court does rule on the constitutionality, that ruling will be as narrow as possible – rule 3.
- The Court will, whenever possible, rule on statutory construction to avoid ruling on constitutionality – rule 7.
Now with this in mind, they won’t rule on the constitutionality, unless necessary, and if they do rule on constitutionality, they will make that ruling as narrow as possible. We will look at a Supreme Court decision that we are all familiar with, Miranda v. Arizona (1966).
In Miranda, which requires that law enforcement officers notice the person being investigated for possible criminal activity be advised that he have the right to refuse to talk and to have an attorney present. However, in keeping with Ashwander rule #7, the ruling deals only with those in custody.
So, the question arises, why would one’s right only apply to when one is in custody (they narrow ruling)? If one the right to not incriminate oneself, “to be a witness against himself”, would that not apply once suspicion was raised against him, or does it only apply after he is in custody?. Wouldn’t it really be a prohibition against government, both before and after one was in custody?
If a law enforcement office, in uniform or plain clothes, with the intent of trying to elicit a confession, or information that would incriminate someone, while in custody, was prohibited by the Fourth Amendment and confirmed by the Supreme Court, then why would we assume that that prohibition did not also extend to when one was under suspicion? After all, when one is under suspicion, the law enforcers are just a small step away from putting someone in custody. Why would that prohibition only come into play when the actual act of custody was implemented? Is it possible that those who ratified the Amendment intended for that form of chicanery to be acceptable? Or, was their intention to prohibit divisive means of acquiring incriminating evidence in apparent conflict with the wording of the Amendment?
Now, we need to visit a little historical background to carry the ramifications of the intent into an understanding of changes in practices between the Eighteenth Century and modern law enforcement, to put a proper perspective on how the intent of the Amendment is circumvented.
In the Eighteenth Century, spying, intelligence gathering, and other such undercover work was carried out in higher levels of government, only. The consequence for being caught practicing such infamy was death. Consequently, those willing to lay their lives on the line for the greater cause of national politics carried out such work. The idea of spying on their own citizens was out of the question. After all, it is the job of any decent government to protect its citizens, not to treat them as they would an enemy. The idea that such practices could be used in the lower elements of society, in pursuit of criminals rather than state secrets or wartime intelligence, was not a practice, as honor was conscientiously upheld. To deceive alleged criminals would be to stoop to the level of criminals. Continue reading ‘Liberty or Laws? – “nor shall be compelled in any criminal case to be a witness against himself”’ »