Note: this was first posted last March, long before the decision became public. Like anyone was surprised by Scalia’s opinion.
Constitution
Silence is Guilt
I have always given this advice to all my clients (and anyone willing to listen): If there is any chance you might be a suspect, even if it’s not true, do not talk to the police. There is nothing you can say that will make things better. Their job is to get you to confess or at least say things that can be used against you. That makes their job so much easier later. The only exception is if you have an air-tight alibi (“I was in Europe the last three months and here’s my passport to prove it.”)
Well, I’m not sure what to advise them now. The Supreme Court yesterday ruled that silence can be used against you, too.
According to this decision, the District Attorney is allowed to argue to the jury that your silence can be interpreted as a sign of guilt.
Conservatives everywhere are thrilled with this new interpretation of the 5th Amendment — an interpretation which wholly new and not supported by any documentation from the Founding Fathers whose “intent” they always say should follow. Apparently, every Amendment has exceptions (except, of course, for the 2nd.)
This, by the way, is a great example of “judicial activism” wherein the judges write laws and change the meanings of long-established precedent. You know how much conservatives hate judicial activism. Well, unless they agree with the result.
My only hope is that some states (such as Pennsylvania, where I practice) will negate the decision. After all, a state can always give more rights than the bare minimum required by the Constitution.
Supreme Court OKs internal searches without a warrant
The courts had previously ruled that taking of your blood for DNA purposes is basically a “search and seizure” protected by the 4th amendment and cannot be done without a warrant. Now that science has progressed to the point where cotton swabs of your saliva are enough, the Courts have said “Oh, well, that’s different” because, um, because we said so.
Apparently, your right to be free from a search doesn’t apply if the search is not bothersome. Clearly, therefore, if the police come into your house without a warrant and wear white gloves and put everything back afterwards, that would be just fine too.
If you’re a cop and you think someone is a suspect and you need DNA, and you have probable cause, you can get a warrant for DNA. It’s done all the time. You go to see a judge, present your evidence, and the judge says yes or no. (And yes, good judges do say no from time to time. I’ve seen it happen.)
This case, however, was about getting DNA on anyone who gets arrested. No need to see a judge first to prove you have probable cause. So those cops who randomly stop minority kids in New York and arrest them on “loitering” or other minor charges? You can bet they’ll soon be carrying cotton swabs around with them.
So why is this a bad thing?
It’s bad because this is self-incrimination. You know, the thing prohibited in the 5th Amendment. You are being forced to provide evidence to the police against your will which could be much more incriminating than any confession. They don’t need your DNA for identification purposes — they already know who you are and can probably confirm that through your fingerprints — it’s being used to help build their case against you.
That’s the difference and that’s the problem.
Remember, we’re talking about people who are arrested, not convicted. Many people are arrested and never convicted. Sometimes the charges are never even filed. Once you are convicted, having to provide DNA as part of your probation requirements is perfectly valid, because you lose many rights once you’re convicted. This, however, takes away your rights before you are even charged.
The most surprising thing about this decision is that Scalia voted with the liberals. Every once in a while the voices in his head that he thinks are the Founding Fathers tell him the right thing, I suppose.
How to be a Tea Party hypocrite
It’s really easy. Some of our best Tea Party politicians are experts at it. If you can say these things with a straight face, you may be a Tea Partier:
“The government should respect my right to be left alone to make my own decisions! Also, abortion should be completely illegal.”
“The 10th Amendment allows for state’s rights so states can pass their own laws without federal interference, so the feds should not be telling us what our local gun laws should be. And the feds should stop states from allowing gay marriage and should prohibit New York city from enacting laws limiting drink sizes or smoking!”
“The 2nd amendment is absolute and there can be no exceptions! And we should ignore the 4th amendment’s clear prohibition against people being arrested without probable cause or the 5th’s against self-incrimination when it applies to people we don’t like, because those exceptions are perfectly allowable.”
“The government should not be telling us that we can’t have our religion in their schools. And they should do everything they can to stop this creeping Sharia law infringing upon us!”
“We have to cut the budget to save money no matter how much it may hurt. But not if it means my plane is late or that we have to stop building tanks in my district that the army doesn’t need.”
“We can’t give money to poor people, because that would kill their incentive. We need to give money to rich corporations to give them an incentive to expand and build the economy.”
I’ll stop there, but I’m sure you can think of other great examples…
Shades of Gray
COMPROMISE IS NOT A DIRTY WORD
I used to be an Angry Young Man, who believed that any sort of compromise with my core principles could not be tolerated.
Actually, I still believe that — except I’ve decided to redefine “core principles.” My core principles that will not be compromised have to do with ethics — I will not tolerate dishonesty, hypocrisy, and cheating.
But politics? Law? My marriage? Life in general? Sure, let’s work together to solve our problems.
I’ve learned, as I’ve aged and become wiser, that I’d rather work with the other side and get 50% of what I want than be stubborn and get 0%.
There are gray areas in the world. Not everything is black and white. Compromise is needed to get things done.
A lot of the arguments I get into with people over politics seem to do with this refusal to compromise; with people who see things only in black and white. (And this includes many on the left as well.)
In some ways, it is like those who strongly believe their religion to the point where there can be no compromise because that means you’re helping evil prevail. Abortion is the best example I can think of there. I am more than willing to compromise on this issue — I agree that there should be restrictions based on medical science. Those who see no gray areas will not budge.
There are also political believers who have similar ideas. They see the world also in absolutes that allow no compromise.
And, of course, you all know what’s coming. The issue that falls into that category these days is gun control. The extremists think that it is impossible to have any compromise because it’s a violation of their civil liberties as guaranteed by the Constitution. They feel that any attempt to prevent felons, terrorists or the insane from having guns is as much of a violation of their rights as throwing someone in jail without giving them a hearing.
As I’ve stated before, all rights have reasonable limitations. The 1st amendment is written about as clear as it could be (and much clearer than the 2nd) and there are many reasonable restrictions on the 1st. I agree with these reasonable restrictions, as does just about every other American, including the 2nd amendment extremists.
There are reasonable restrictions on the 4th amendment concerning search and seizure laws. There are reasonable restrictions on the 5th, 6th, 7th, and 8th. And just about every American agrees with those, too.
Yet when I talk about reasonable restrictions on the 2nd, suddenly people are calling me “anti-civil rights”. This despite my entire career being dedicated to the exact opposite.
Seriously, how do you deal with these people? Well, you can’t. You can lead someone to compromise, but you can’t make them think.
Some people never grow out of the “Angry Young Man” phase of their life.
The NRA and treason
The NRA just chose a leader who calls the Civil War “The War of Northern Aggression.”
Let me let that sink in for a minute.
This explains much. Many of the most extreme NRA members seem to think that there is nothing treasonous at all about taking up arms against your own country if you don’t like the way things are going. And now I see why — because they have the same mindset that the people who committed treason back during the Civil War had.
“What? You want to take away my (insert one: slaves / guns)? Don’t you know the Constitution gives me the right to own (slaves / guns)? You can’t violate my freedom like that! I don’t care that a majority of Americans think differently or that the courts have ruled against me!”
Seriously, I understand these people better now. Sadly.
Editorial cartoon of the day
Westboro Baptist Church members arrested, 1st amendment be damned
Look, I hate the Westboro Baptist Church idiots as much as anyone. Why they think their religion teaches them to preach hatred is beyond me.
But when people are posting things like this, I have to (sadly) disagree:
So Westboro “Baptist Church” showed up here in Texas at the memorial service in West for the first responders who lost their lives in the explosion. The Chief of Police promptly had all 20 or so of them arrested and put into holding cells (all the men in one and all the women in another) When they told him he couldn’t do that, he let them know HE could. Since he hadn’t officially charged them, he could hold them for 24 hours before he had to charge them or let them go! (plenty of time to hold the memorial service). I guess Westboro didn’t think it through too well… This is Texas. As quickly as we fry people down here, did they really think they would be allowed to show that kind of disrespect?? Their photos were also released to the other small towns surrounding West, where services would be denied to them. Sometimes you just have to admire the way we do things down here in Texas!
Nothing to admire here folks, just move along.
We are abandoning what it means to be an American in our blind hatred of these idiots.
While it is perfectly legal to have restrictions which are not “content based” (such as “No public protests within 500 yards of a funeral” or “No protests or speeches allowed in courtrooms while a trial is in progress”) it appears that is not the case here. The people are being arrested (assuming the above is true — I haven’t found confirmation yet) for the content of their speech. It’s what they are saying which is being punished and censored. If they had all shown up with signs saying “We support our heroes” no one would have said a word.
And that’s the problem.
The 1st amendment is meaningless if it doesn’t protect speech we hate. Speech we all agree with doesn’t need protecting.
So while I hate these Westboro cretins, I love the Constitution more. And therefore, they have to be allowed to protest.
Rhode Island joins the 21st Century
I’m happy to see little Rhode Island has just passed a bill extending marriage to all loving couples.
http://www.huffingtonpost.com/2013/04/24/rhode-island-gay-marriage_n_3149877.html
This is democracy. This is not “unelected judges imposing their will on the people.” And this is the future.
I am embarrassed to be in a state that still discriminates, and hope that Pennsylvania will one day join the rest of the civilized world.
Editorial cartoon of the day
ventrellaquest.com 