OT: Students complain about liberal faculty bias ...

[jim stone]

Face it. You're a crypto-syndicalist!

[pthouron]

Face it. You're a crypto-syndicalist!

In my youth, I used to think of myself as an anarcho-syndicalist... hence the almost allergic reaction to the word "Marxist"...

[Jerry Freeman]

Obviously, if anyone on this board is a Marxist, it's Zoob. (The avatar gives it away every time. And I, of course, am a hardcore Mouseist!)

Best wishes,
Jerry

[vomitbunny]

I'd like to take this opportunity to say I am a dirty communist.

[Jerry Freeman]

*mails bar of soap*

[jim stone]

Face it. You're a crypto-syndicalist!

In my youth, I used to think of myself as an anarcho-syndicalist... hence the almost allergic reaction to the word "Marxist"...

George Orwell wrote wonderful stuff about such people,
concerning the Spanish Civil War, and his
profound dislike for the Communists, who
betrayed it. Man do I like
Orwell.

He once wrote of England that, finally, it
was a family, with the wrong people in charge
and a few crazies living in the attic, that nonetheless
would slowly wheel en masse to face a
common threat. Which seems appropriate to us, too,
it turns out. An odd sort of radical, Orwell,
who seemed sometimes conservative.

[Jack]

I guess I'm a crypto-pinko...you know how it goes.

[Bloomfield]

'Activism' isn't my word. I rather find these categories
unhelpful.

A couple of brief points. First, Miranda wasn't charged with murder, but rape & robbery, if I recall correctly.

Second, if "activism" isn't your word, I am even more puzzled by the discussions a few months ago about Roe v. Wade and activism and "substantive due process." I think it makes sense to either talk about the issues (abortion, the right against self-incrimination, and so forth), and to leave out the constitutional/lawyerly gloss, or to engage those level as well and then use some care with terms like activism, due process and so forth.

On that point specifically: There different categories in which we can talk about things. For instance, people can be described in terms of size (tall, short) or life (dead, alive). Obviously they are very different things, and a discussion of the sort "Bloomfield is really short" --- "No, no I disagree, he is still alive" doesn't really work.

Apply this to Supreme Court decisions. You can discuss them in terms of the issue the substance. One might say, I just don't agree that abortion should be allowed, and therefore I disagree with every court decision that condones abortions. On the other hand, you can discuss court decisions in terms of judicial competence. For example, one might say, I don't really care whether X is convicted of larceny or conversion, because he'll go to jail anyway, but the court got it wrong by applying the larceny statute when the conversion statute was applicable.

Now what sort of argument is it to say, "Roe v. Wade is an activist decision"? It's one of judicial competence: The judges exceeded their mandate, made it all up, and instead of applying the impersonal constitution enshrined their personal views. So saying, "I think Roe v. Wade is an activist decision" is something different form saying "I think it's wrong to kill unborn human beings."

With that in mind, look at what you wrote about Miranda:

All one can expect of Courts which are called
upon to interpret the Constitution, are reasonably plausible
arguments from the constitution and precedent to the
ruling. This isn't math; I don't expect rulings to be
entirely uncontroversial. On the face of things the
Court has here done that much. Also it has become
engaged in a real problem. You can be sure that
lots of people were being beaten into confessions,
and it's no accident that many of the victimized
were minorities. If this is 'activism' it's OK with me,
and I do think I'm a judicial conservative.
It's hard to believe the ruling is made up out
of 'thin air,' nor is there the appearance that
the Court is pursuing an agenda.

....

Perhaps others ask more of the Court; for me,
Miranda strikes me as reasonably principled
and needed--which is not to say wholly
beyond controversy. If Miranda is what rulings
made up out of thin air (or 'judical activism')
amounted to,
well, there wouldn't have been 4000 abortions
today.

So what you are saying here is that Bloomfield isn't short because he is alive. Saying it wasn't activism because it was the right outcome just doesn't fly. As elendil said, there are plenty of rational outcomes and activist or non-activist doesn't make an outcome less or more rational.

The upshot of this: Let's just ignore the level of judical competence unless we are willing to keep things straight and to discuss the theory of constitutional interpretation and judical decision-making. Nobody is served by using terms like activism or substantive due process as insults that you can hurl at your opponent after your mind is made up that you disagree with him.

[Qualifier: There is in the law a very interesting and subtle connection between the substance of the issue and judical competence, meaning that an outcome may be right because of the competent process by which it was arrived at. This heady stuff, however, and beyond the reach of a discussion that doesn't pay very close attention to the terms it uses. I am ignoring it here.]

Finally: Here is why Miranda is hollow (and whatever positive changes it brought about were incidental to the publicity & discussion I would think, and not the result of police officers reading out a little slip of paper). If the Fifth Amendment forbids coercing confessoins from prisoners than it forbids coercing confessions from prisoners. It doesn't help to tell your prisoner that you are about to do something to him that is forbidden by the Constitution and then go and do it anyway. These incommunicado interrogations: it's accepted that they are coercive (simple prisoner's dilemma). They aren't any less coercive because you tell Ernesto Miranda that he has the right to remain silent. Where does the Court get the notion that civil liberties are some sort of tax on the weak-willed (we may coerce your confession if we tell you that we will use what you say against you), rather than a protection of prisoners from coercion to incriminate themselves?

And actually, I don't care much whether we consider Miranda activist or not. But what I do care about is that Miranda doesn't do much for our liberty because if they are going to put you through the wringer it doesn't help much to have a large type in a uniform read you some magic incantation that you know by heart from having heard it on NYPD Blue a million times.

[glauber]

Carmen Miranda
(you have the right to wear fruit)

[Bloomfield]

No, no: Any fruit you wear will be used against you.

[glauber]

No, no: Any fruit you wear will be used against you.

[The Weekenders]

Tassel-loafter footprints all over the back of Emma Lazarus is what I see. Nyuk.nyuk.

Give me your crabby, enterprising, isolated family clans, yearning to eat freedom and complain about the taste.

And somewhere along the line, swear to uphold the Constitution.

[jim stone]

A couple of brief points. First, Miranda wasn't charged with murder, but rape & robbery, if I recall correctly.

Thanks. Escobedo was charged and convicted with murder;
upheld on appeal.
.
Second, if "activism" isn't your word, I am even more puzzled by the discussions a few months ago about Roe v. Wade and activism and "substantive due process." I think it makes sense to either talk about the issues (abortion, the right against self-incrimination, and so forth), and to leave out the constitutional/lawyerly gloss, or to engage those level as well and then use some care with terms like activism, due process and so forth.

I don't understand 'original intent' and 'strict construction.'
I mean, I really don't know what these words are supposed to
mean. I do understand 'substantive due process' which has
a legal definition commonly used by jurists. It is not, you may recall, my view that
substantive due process rulings are necessarily
mistaken. I don't see the term as an insult.

As to 'activist' well maybe I understand it
and maybe I don't. It seems vague. Maybe activism
is sometimes a good thing. What matters is that the
ruling has a reasonalbe basis in law and precedent,
and that it addresses a real problem. So we might say
that Brown v. the Board of Education was activist,
because the Court became involved in ending segregated
schooling after 70 or 80 years of doing nothing.
It seems plain that it waited till the time was right,
and it thought the country was ready to deal
with segregation,
to strike it down. Still that 'activist' decision
is grounded in the 14th amendment and addressed,
heaven knows, a real problem.

On that point specifically: There different categories in which we can talk about things. For instance, people can be described in terms of size (tall, short) or life (dead, alive). Obviously they are very different things, and a discussion of the sort "Bloomfield is really short" --- "No, no I disagree, he is still alive" doesn't really work.

Apply this to Supreme Court decisions. You can discuss them in terms of the issue the substance. One might say, I just don't agree that abortion should be allowed, and therefore I disagree with every court decision that condones abortions.

No, that isn't my view. I'm opposed to legal abortion, but
that isn't my problem with the rulings.

On the other hand, you can discuss court decisions in terms of judicial competence. For example, one might say, I don't really care whether X is convicted of larceny or conversion, because he'll go to jail anyway, but the court got it wrong by applying the larceny statute when the conversion statute was applicable.

Right.

Now what sort of argument is it to say, "Roe v. Wade is an activist decision"? It's one of judicial competence: The judges exceeded their mandate, made it all up, and instead of applying the impersonal constitution enshrined their personal views. So saying, "I think Roe v. Wade is an activist decision" is something different form saying "I think it's wrong to kill unborn human beings."

Fine, if that's what you mean by 'activist.' Again, I
find the word unclear, but I'm glad to use it your way.
So 'activist' decisions are legally flawed in that the
court exceeded their mandate, made it all up,
and instead of applying the impersonal constitution
enshrined their personal views., let's talk
that way. So Brown wasn't activist, in my opinion;
Roe was.

With that in mind, look at what you wrote about Miranda:

Quote:
All one can expect of Courts which are called
upon to interpret the Constitution, are reasonably plausible
arguments from the constitution and precedent to the
ruling. This isn't math; I don't expect rulings to be
entirely uncontroversial. On the face of things the
Court has here done that much. Also it has become
engaged in a real problem. You can be sure that
lots of people were being beaten into confessions,
and it's no accident that many of the victimized
were minorities. If this is 'activism' it's OK with me,
and I do think I'm a judicial conservative.
It's hard to believe the ruling is made up out
of 'thin air,' nor is there the appearance that
the Court is pursuing an agenda.

Note, Bloomie, that I'm not saying it's activism.
I'm saying IF this is activism, I have no objection
to it. I don't really know, in writing this, what activism clearly
amounts to. So I don't know if Miranda is activist.
By your definition, though, I'm saying that Miranda
isn't activism.

So what you are saying here is that Bloomfield isn't short because he is alive.

I don't understand.

Saying it wasn't activism because it was the right outcome just doesn't fly.

I agree, but I don't see how this applies to what I said.
Using words your way, I'm saying it wasn't
activist because the ruling follows reasonably from law
and precedent.

As elendil said, there are plenty of rational outcomes and activist or non-activist doesn't make an outcome less or more rational.

I'm sorry, I don't understand. Surely what matters is how the court
argued, or, in the case of Roe, whether there was an argument
at all. By your definition of activism, Miranda wasn't activism,
I argued at length. But Roe, I've argued, was activist,
by your definition. There ultimately was no argument
from law and precedent to the ruling. The Court ruled by fiat--
why does the right of privacy we've found in contraception cases
cover abortion too? Because we say it does.


The upshot of this: Let's just ignore the level of judical competence unless we are willing to keep things straight and to discuss the theory of constitutional interpretation and judical decision-making. Nobody is served by using terms like activism or substantive due process as insults that you can hurl at your opponent after your mind is made up that you disagree with him.

I simply don't understand. My concern is what you call judicial
competence. I don't see 'substantive due process' as an
insult, and I'm unclear what 'activism' means.
I was willing to allow that Miranda, a decision of which
I approve, was activism. So I wasn't using the
word as an insult.

Finally: Here is why Miranda is hollow (and whatever positive changes it brought about were incidental to the publicity & discussion I would think, and not the result of police officers reading out a little slip of paper). If the Fifth Amendment forbids coercing confessoins from prisoners than it forbids coercing confessions from prisoners. It doesn't help to tell your prisoner that you are about to do something to him that is forbidden by the Constitution and then go and do it anyway. These incommunicado interrogations: it's accepted that they are coercive (simple prisoner's dilemma). They aren't any less coercive because you tell Ernesto Miranda that he has the right to remain silent.

Why not? He can say 'I wish to remain
silent. Also I want to talk to a lawyer. That's my constitutional
right.' A Supreme Court ruling establishing this is likely
to have some effect on police procedure and what happens
in interrogations, unless your dealing with the Gestapo or
the KGB, especially when virtually everybody in
the country knows it. I daresay hundreds of thousands of people have
effectively availed themselves of their Miranda rights. That's not hollow;
it's helpful.

\Where does the Court get the notion that civil liberties are some sort of tax on the weak-willed (we may coerce your confession if we tell you that we will use what you say against you), rather than a protection of prisoners from coercion to incriminate themselves?

I don't understand.

And actually, I don't care much whether we consider Miranda activist or not. But what I do care about is that Miranda doesn't do much for our liberty because if they are going to put you through the wringer it doesn't help much to have a large type in a uniform read you some magic incantation that you know by heart from having heard it on NYPD Blue a million times.

Nobody sees Miranda as a magic bullet that insures
your fifth and sixth amendment rights.
But it does introduce
legal due process in police interrogations, which seems to
me a good idea. And if you think it has made no practical
difference in how police conduct themselves and how
citizens conduct themselves, we definitely have a factual disagreement.

Thanks for trying to set me straight. Jim

[elendil]

Look at it this way, Jim. All are agreed that the problem Miranda purported to deal with was that of coerced confessions. So now ask, which party was the recital of constitutional rights supposed to be addressing? The putative perp (perp, for short) or the cop?

Now suppose a rogue cop who has done his homework and knows how to inflict excruciating pain without leaving physical marks; or perhaps he is simply a whiz bang interrogator and knows how to build psychological pressure. Either way, he goes about his daily business by coercing confessions. Now he finds out that he's supposed to recite the perp's rights to the perp before he can extract the confession. Really, nothing has changed. The rogue cop still has the perp to himself, it's still the supposedly upstanding cop's word against the perp ("I read him his rights; he agreed to talk but refused to sign a form, as is duly noted in my arrest log; I never touched him; he's a liar with an arrest record as long as his arm."). The Miranda "warnings" don't intimidate the rogue cop. Do they give the perp more moral courage to resist coercion than previously? I don't see why it should: pain is still pain and pressure is still pressure, whether I've just heard a whirlwind recital of my rights or not (and which, for most perps is meaningless anyway). Coercion still does work; courts are not in a position to simply throw out cases left and right; and, contrary to the naive view of appelate level judges, perps are still remarkably eager to speak to the police, even after being Mirandized.

As I've heard it expressed many times: Miranda simply penalizes good police work (think back to the Iowa case I cited) and does little or nothing to discourage the rogue cop. The honest, well intentioned cop who steps over Miranda's magic line in some minor way and gets a perfectly good confession is penalized, along with the whole community, while the rogue cop's conviction rate probably stays pretty much the same. Miranda is little more, maybe no more, than a fig leaf, a bit of liberal mythology for people who think words create reality.

OK, so suppose the situation has improved since Miranda. There's less brutality and coercion. Are we talking post hoc or propter hoc? I would argue that it's almost entirely post hoc. How, then, do I account for the improved law enforcement environment? Here's how.

I think the major change since Miranda has been increased professionalism in the law enforcement community on the one hand and increased community input on the other hand. Under increased professionalism I would include: higher standards of education and character, to include psychological testing, and increased training. I think the community input speaks for itself. Police departments simply must be more responsive to the communities they "serve and protect" than previously. Moreover, the legal environment has changed. Police departments are now held to account in ways that were unimaginable before; there is much more of an incentive to weed out rogue cops. That has a lot more to do with voting rights for minorities as well as changing standards for the community at large: brutal policing is no longer winked at by society at large. And that goes back to higher levels of education, too, I believe.

So, Miranda really wasn't very well crafted, as far as bringing about the results the Court claimed that it wanted. If they were going to prescribe regulations for police, which they did, they could have come up, with a little more imagination, with far better designed prescriptions. The point is, at the point that they began to prescribe, they were legislating, whether reasonably or not. Those are the kinds of things the people's elected reps are supposed to do, not the courts. It's a blurring of the whole notion of the separation of powers. It's also a tacit admission on the part of a liberal court that they don't believe the people can be trusted to do the right thing. Any way you slice it, we have a new system of government. Whether it's for the better or not, that's another debate.

Here's a thought, speaking of naive jurists. We've all heard about the requirements for "environmental impact" statements when construction or whatever is undertaken. Why not "law enforcement impact" statements when new laws are proposed or courts are going to rule on criminal procedure? Judges and legislators are all (or mostly all) lawyers. The activist groups get their say. I suppose there are law enforcement associations that could file amicus briefs, but somehow I think the reality of law enforcement rarely gets its day in court, or its voice is drowned out. An idea whose time has come?

[Jerry Freeman]

Jim,

As a matter of curiosity, when was the last time you read Roe v Wade?