A Fifth of Amendment

It’s been a long time since I talked about the Bill of Rights. Check out the previous installments: One, Two, Three, *crunch!* Four. Remember, all ten were written by guys who overthrew the legal government. Not that you’ll be learning that in Texas anymore.

The Fifth Amendment is probably the one people know the best, even if they aren’t aware of it. Thanks to almost a half century of police dramas like Dragnet and Law and Order, most people know this:

You have the right to remain silent. Anything you do say can and will be used against you in a court of law.

The actual words in the Fifth Amendment are a little more complicated:

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 offense 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.

So let’s pick this apart just a little. First: unless it’s a military matter, you’ve got to have a Grand Jury indictment before you storm off towards a trial. Second: you can’t prosecute somebody for the same thing twice. Third: and this is where Mr. Miranda comes into play — you can’t be made to testify against yourself (hence, “I’m taking the 5th“) or make statements against yourself that will be used as evidence (if you are dumb enough to blather on about how you did it while you are in police custody, it “can and will be used against you”), and moreover they can’t just arrest you or confiscate your stuff just because they feel like it. Finally, they can’t take your stuff “for public use” without paying you.

Asset forfeiture would appear to be pretty clearly not legal under the Fifth Amendment, but some judges said it was just dandy. Somehow “Activist judges” who “legislate from the bench” are only a problem when they do things ultra-conservatives don’t like.

So some very “conservative” people don’t think we should tell certain criminals that they have the right to shut up. That’s because — today at least — the “certain criminals” are terrorists, who under their definition are brown. After all, their logic goes, you never know when they might know about a threat that must be neutralized right away. Lives are at stake every moment they don’t talk! Therefore it is critically important to go all Jack Bauer on their asses immediately if not sooner.*

One must wonder if they would say the same thing if we were talking about nice white Christian terrorists like Tim McVeigh or William Krar.

As I see it, there are two huge problems with changing Miranda. First is the old “slippery slope.” Today it’s terrorists. Tomorrow it’s suspected serial killers. The next day it’s kidnappers or rapists. Pretty soon nobody’s got any rights once they’ve been accused of a felony. And don’t kid yourself, women and minorities would be less likely to be informed that maybe they should shut up and ask for a lawyer. It’s obvious that white boys never break the law, they only have “youthful indiscretions.”

The second problem is that the system we have actually works! The last two terrorists we caught were read their rights, and they were willing to talk to law enforcement anyway! A lot of people choose to give up their right to remain silent for reasons that are their own. There is no need to torture anybody, nor even a need to just shut up about their rights. Since one of the recent terrorists was a naturalized citizen, he might know his Constitutional rights better than some cops.

Seriously. The Fifth Amendment was good enough for guys like Alexander Hamilton, George Washington, Ben Franklin, James Madison, and a host of others. It’s good enough for me.

In Closing: Take Your Kids to the Park and Leave Them Day is Saturday; Volcanic Ash Maps; better get used to warmer temperatures (no more laughing about snowstorms “proving” global climate change is a hoax); reaping the whirlwind of Reaganomics; racial wealth gap quadrupled — yes quadrupled — since the 80s (don’t suppose that has anything to do with Reagan?); how important are small businesses to the economy?; Duhpartment of Research finds that reading skills in early grades are critical to academic success later; I could have told them that creative people tend to be a little crazy; oil in the water (and nothing BP does to try and cover up how much there is will change reality); and crazy architecture.

* Did you know that in 2007, an American General personally flew out to Hollywood to ask the producers of 24 to cut the torture and other illegal crap out?