“…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…” – Portion of text from the 5th Amendment
There are several very noteworthy cases before our nation’s Supreme Court whose verdicts will be announced some time this month. In fact, the most anticipated seem to be the announcements being held off on, almost as though one of the Justices said “Hey guys – you know what’d be funny? If we made them wait to hear our ruling on these until the last possible moment… man, that’d kill ‘em!”
You’ve made a mistake, however, if in waiting for these other big cases, you were not paying attention to the Court’s attack on Constitution this summer. I still have the utmost respect for our Judges, in particular our conservative Judges, but I vehemently disagree about their most recent ruling.
Which now makes two very important Constitutional issues that I believe the Court has completely misfired on in this session. The first was an utter destruction of the 4th Amendment, which still has me pretty fired up.
Now, the conservatives on the Court (along with Justice Kennedy) have managed to disappoint me again by cutting one of the legs out from under the 5th Amendment. The case being ruled upon involved a man who had voluntarily submitted to police questioning about a murder. In the process of questioning, the detectives became suspicious of the man. The questioning became more direct, and the man (also a suspect) stopped speaking. The prosecutor convinced jurors that his silence was an admission of guilt.
Now, almost twenty years later, his lawyers argued that his silence could not be used against him – per his Fifth Amendment rights.
The Supreme Court decided against him – with the Justices lining up along ideological lines. I’m just not sure how this ruling is consistent with ideological conservatism.
Lyle Denniston of SCOTUS Blog lays out the ruling in laymen’s terms:
“Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial. If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.”
There are other mitigating factors to this ruling (and importantly, a note that Justices Scalia and Thomas did not sign onto the majority opinion but agreed with the State that the defendant’s silence could be used against him), but in essence the ruling now requires you to literally state when you are claiming your Fifth Amendment rights.
This strikes me as an extremely important moment because the Court has seemingly ruled that the rights we hold under the Constitution are not absolute.
Bonnie Kristian at Young Americans for Liberty imagines it something like this:
“Will we have to announce, “I’m exercising my First Amendment right” before we go to church? Blog? Have a club meeting? And if you post on Facebook, should you make note of your right to free speech in the status itself, or do you say it out to your living room? Or should we say, “I’m using my Second Amendment right” every time we touch a gun? Or what about the Third Amendment? If I don’t mention it each time I leave my house, should I expect to find soldiers bunking down in my kitchen when I get home?”
Perhaps it’s a humorous take on the ruling, but valid nonetheless. If we must verbally (or outwardly) claim our rights each time we’d like to use them… they’re no longer rights – they become permissions.