News Miranda and privacy (split from Souter)

[TheStatutoryApe]

This was split from https://www.physicsforums.com/showthread.php?t=410628[/color]

For example, "prohibits the [...] government from depriving any person of life, liberty, or property, without due process of law"

The most often discussed definition here is actually what constitutes "due process". We have protection from state government based on most of the Bill of Rights through the "Due Process" clause of the 14th amendment but it has taken over a century of judicial "activism" for us to get that far. Originally it was interpreted to mean merely that all persons should receive a "fair" trial, though without actually defining what constitutes a "fair trial".

The "Right to Privacy" is a greater example as even the majority opinion for the decision that instituted it admitted that it is not something that could be pointed out in the constitution but that only by cross referencing several clauses could one find it hanging nebulously between the lines. Roe v. Wade being an extension of the "Right to Privacy" is all the more derivative.

Miranda is still being argued among the justices within the last decade I believe. The Miranda decision itself says that it is not a right.

 

[Proton Soup]

Miranda is still being argued among the justices within the last decade I believe. The Miranda decision itself says that it is not a right.

because of the threat of "terrorism" ? it seems like liberties tend to ebb and flow with the seasons of war.

 

[TheStatutoryApe]

because of the threat of "terrorism" ? it seems like liberties tend to ebb and flow with the seasons of war.

No. Its because it is not a right but it is often perceived as one. The primary effect of not giving Miranda warnings is that confessions, or even just information, gathered by officers who failed to do so may not be admitted. There are circumstances where it may be admitted anyway but the conditions are vague and this often leads to arguments about whether or not Miranda warnings are really necessary or just an extra precaution that need not be exercised in every circumstance.

 

[Cyrus]

For example, if you walk into a police station, they can legally search you without a warrant if they find you have blood under your fingernails, for instance.

 

[turbo]

SCOTUS has addressed a personal privacy case regarding police officers who used their department cell phones to send text messages.

http://blogs.kansascity.com/crime_scene/2010/06/california-cop-loses-textmessage-case-at-supreme-court.html

The Constitution is pretty silent on such matters, so the case had to be decided on the merits, considering the officer's expectation of privacy, his use of publicly-owned equipment for personal messages, and the degree of intrusion by his supervisors. This is routine work for the court - interpreting settled law in situations that might be unclear.

 

[Galteeth]

This is specifically what I mean. Using case law (or common law) has a history that predates the creation of the US. It would be ludicrous to think there was some assumption that courts wouldn't use case law as precedents when the Constitution was written. It would have had to be specifically mentioned when creating the judicial branch if the Constitution intended to make a sudden change in how the courts operated.

That's why I don't like the Roe v Wade example. It's a bait and switch. A case that definitely did legislate from the bench, but not for the reasons most people like to claim.

Fair enough, and I think I was not clear enough. It is not the reliance on case law, but the building of questionable inference upon questionable inference to arrive at a new law.

I don't see for example, miranda rights as being the same, since the right to a fair trial implies some necessary fairness in the way people are questioned, as well as a logical extension of the intention of the habeas corpus principle.

I suppose it is ultimately subjective, but one seems like a direct inference, while the other seems like a nebulous construction.

To put it a different way, a reasonable person could conclude that miranda protections are necessary from the right to a fair trial principle. It's much harder to get to the conclusions of roe v. wade. Furthermore, the rights outlined in roe v. wade are not applied to areas where they would theoretically be similar, such as medical drug use and euthanasia. It seems like such a narrow and selective application of principles. And why would medical privacy apply only to certain trimesters? I agree with your general assesment. I am a bit confused about the part about the state regulating medical procedures. Are you referring here to the federal government, or the state of Texas?

 

[TheStatutoryApe]

I don't see for example, miranda rights as being the same, since the right to a fair trial implies some necessary fairness in the way people are questioned, as well as a logical extension of the intention of the habeas corpus principle.

While I agree with your primary point I would disagree that there is any direct inference as the basis for Miranda. What makes Miranda so singular a decision is that it does not create any law or imply any right. It is a case where the USSC has more or less created a memorandum on procedural conduct extending all the way down to the very lowest rungs of the nation's justice system.