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I'm referring to the right to not self-incriminate. That is the issue at hand. What you said is untrue twice over. It's central to this issue and it does "need"

by aric 12y ago

I'm referring to the right to not self-incriminate. That is the issue at hand. What you said is untrue twice over. It's central to this issue and it does "need" to be invoked. The SCOTUS made some fateful rulings in 2013 and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about.

DannyBee 12y ago
"I'm referring to the right to not self-incriminate." Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself". Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...) "What you said is untrue twice over. " Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right. (Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth) " It's central to this issue and it does "need" to be invoked." I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion. " and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about." See above It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries. You are of course, welcome to look up the caselaw history if you don't believe me. It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise. Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/ http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema... Note the section on pre-1965. The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time. But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.
- aric 12y ago
  You're confusing explicit rights with implicit rights built on precedence. Much of what's considered Constitutional rights is not definite and explicit. Likewise, the Constitution doesn't explicitly state that you have a right to your physical senses as a sentient being beyond ambiguous terms pertaining to welfare. This reminds me of a leading worry during the writing of the Bill of Rights: a worry that the affirmation of some specific humanitarian rights might regrettably lead society into believing that mere omission becomes the grounds for abusing freedoms unstated. > It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries. Yes. It became a right. Go ahead and argue all day about what you perceive as fulfilling the qualification of a "right." I'll argue in direct contrast if your interpretation of rights remains narrow and dictated by the past. It won't help the situation at hand. Miranda warnings wouldn't have resulted if it weren't for precedence and perceived rights upholding it. Now the tides shift again. You're free to call this a "return to the past" or a "return to previous rights I think you never had" or whatever you wish. I call it the erosion of rights. -------------------- Edit: > But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there. That would be ideal. That would be a colossal task, indeed, in lieu of a great number of other rights continuing to erode through an oligarchy's surveillance institutions and corporate decree.
  - tptacek 12y ago
    You're caught in a semantic rut. Your peer in this conversation isn't suggesting that there is no "right to silence". Re-read his comment. He's acknowledging that there is an implied right, but pointing out that it is not in the Constitution. He agrees with you that the right is eroding. His disagreement regards the solution that erosion. Your solution seems to be to shore up the implied right to silence that comes from Miranda. His is to add an amendment to the Constitution to formalize a right to silence.
    - aric 12y ago
      It's a semantic rut, perhaps. It's not necessarily my semantic rut. Off the bat he was arguing down this road as if to suggest that I was implying that "remaining silent" was explicitly spelled out in the Constitution -- something I never implied. I'm not stating solutions. I'm commenting on results. Ideas for solutions are numerous and probably least served for attention in this thread. A full constitutional amendment would be great. Agreed. Unfortunately, that's a daunting likelihood given the prevailing winds. This matter would benefit from re-reading my comments equally, as well, but I digress. No worries. Thank you for your added thoughts.

by aric 12y ago

DannyBee 12y ago

"I'm referring to the right to not self-incriminate." Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself". Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...) "What you said is untrue twice over. " Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right. (Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth) " It's central to this issue and it does "need" to be invoked." I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion. " and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about." See above It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries. You are of course, welcome to look up the caselaw history if you don't believe me. It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise. Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/ http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema... Note the section on pre-1965. The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time. But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.

aric 12y ago
You're confusing explicit rights with implicit rights built on precedence. Much of what's considered Constitutional rights is not definite and explicit. Likewise, the Constitution doesn't explicitly state that you have a right to your physical senses as a sentient being beyond ambiguous terms pertaining to welfare. This reminds me of a leading worry during the writing of the Bill of Rights: a worry that the affirmation of some specific humanitarian rights might regrettably lead society into believing that mere omission becomes the grounds for abusing freedoms unstated. > It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries. Yes. It became a right. Go ahead and argue all day about what you perceive as fulfilling the qualification of a "right." I'll argue in direct contrast if your interpretation of rights remains narrow and dictated by the past. It won't help the situation at hand. Miranda warnings wouldn't have resulted if it weren't for precedence and perceived rights upholding it. Now the tides shift again. You're free to call this a "return to the past" or a "return to previous rights I think you never had" or whatever you wish. I call it the erosion of rights. -------------------- Edit: > But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there. That would be ideal. That would be a colossal task, indeed, in lieu of a great number of other rights continuing to erode through an oligarchy's surveillance institutions and corporate decree.
- tptacek 12y ago
  You're caught in a semantic rut. Your peer in this conversation isn't suggesting that there is no "right to silence". Re-read his comment. He's acknowledging that there is an implied right, but pointing out that it is not in the Constitution. He agrees with you that the right is eroding. His disagreement regards the solution that erosion. Your solution seems to be to shore up the implied right to silence that comes from Miranda. His is to add an amendment to the Constitution to formalize a right to silence.
  - aric 12y ago
    It's a semantic rut, perhaps. It's not necessarily my semantic rut. Off the bat he was arguing down this road as if to suggest that I was implying that "remaining silent" was explicitly spelled out in the Constitution -- something I never implied. I'm not stating solutions. I'm commenting on results. Ideas for solutions are numerous and probably least served for attention in this thread. A full constitutional amendment would be great. Agreed. Unfortunately, that's a daunting likelihood given the prevailing winds. This matter would benefit from re-reading my comments equally, as well, but I digress. No worries. Thank you for your added thoughts.