Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The U.S. Supreme Court has overturned a landmark 1986 ruling that forbid the police from questioning suspects without their attorney present. The 1986 case, Michigan v Jackson, was overturned on Tuesday in a 5-4 ruling (PDF) in a similar case, Montejo v Louisiana.
As I reported last month, the Obama administration had sided with the state of Louisiana in that case and argued for overturning the prior case.
Michigan v Jackson established the rule that if someone accused of a crime has an attorney or has requested the appointment of an attorney by the court, police may not question them without that attorney being present even if the accused agrees to waive the right to have their attorney present during that particular session of questioning. Under Jackson, any waiver of that right was presumed to be invalid because it was not made with the advice of counsel.
Justice Scalia, writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy, said "the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering "society's compelling interest in finding, convicting, and punishing those who violate the law." (citations omitted)
This provoked an angry response from the dissenting justices, led by Justice Stevens, who took the unusual step of reading his dissenting opinion aloud from the bench. The majority, he wrote, "flagrantly misrepresents" the issues of the case and has "overrule[d] Jackson to correct a 'theoretical and doctrinal' problem of its own imagining." Such tough language is usually aimed by Justice Scalia, not at him.
A group of 19 former judges, prosecutors and law enforcement officials, including prominent conservatives like former FBI Director William Sessions and former Bush administration Deputy Attorney General Larry Thompson, filed an amicus brief (PDF) arguing strongly against overturning Jackson.
Their brief argues that the Jackson ruling "provides an easily enforceable rule governing post-arraignment custodial interrogations," that the "simplicity and clarity of the rule facilitate[s] the training of police officers" and "provides judges a straightforward, objective standard to determine whether those confessions are admissible."
"Absent such a clear test," they argue, "law enforcement personnel, prosecutors, and trial judges will have to start anew in developing a common law from particularized decisions reflecting inherently subjective assessments of the tactics as well as the intent of investigators, the timing as well as the content of interrogations, and the understanding as well as the free will of defendants."
Their brief also argues that the purpose of the Sixth Amendment goes beyond merely preserving the adversary process and that the Jackson rule protects crucial Fifth Amendment due process protections that help ensure a fair trial and public confidence in the integrity of the criminal justice system:
Third, Jackson links two key criminal procedural rights -- the Sixth Amendment right to counsel under Gideon v. Wainwright and the Fifth Amendment rights of an accused under Miranda -- which are fundamental to the adversary process and maintain public confidence in our criminal justice system. Discarding Jackson would undermine both rights. Allowing the police to initiate interrogation of a represented defendant and to use any resulting statements would strip away protections the attorney can provide, interfere with the relationship between counsel and client, and undercut the integrity of criminal trials...To abandon a rule that safeguards them would erode the public confidence they foster. It would signal that enduring legal principles and important constitutional rights are no longer so enduring nor so important.
Just another example of the Obama administration adopting Bush administration positions and undermining constitutional protections.
Politics
Comments
"Just another example of the Obama administration adopting Bush administration positions and undermining constitutional protections."
True enough, but I still go to bed at night grateful that we don't have President McCain.
Posted by: MS | May 30, 2009 9:47 AM
I can see the Onion headline now: Supreme Court Rules 1/6 of all NBC "Law And Order" episodes invalid.
[This particular issue, questioning without council, comes up rather often in the show's history.]
Posted by: Joe Shelby | May 30, 2009 10:18 AM
One reason for Stevens' strong dissent is that he is the one who wrote the original Jackson decision.
Posted by: Ahcuah | May 30, 2009 10:29 AM
I don't see the problem, they wouldn't be suspects if they weren't guilty.
Posted by: James Hanley | May 30, 2009 11:33 AM
Whew! Glad we don't have these sudden reverses of civil liberties in the UK...;)
Posted by: Eamon | May 30, 2009 12:12 PM
The next time someone mindlessly drones on about how we're the freest country in the world, I'm going to shove this article into their face (or up whatever orafice presents itself). We're becoming a third world nation alright, but not in the way the dittoheads would have us believe.
Let's remember we have 25% of the world's prison population, accounting for over 1% of our own. It's not like the cops have trouble locking people up.
We've become a police state, let's just admit the ghastly truth, even those of us who happily won the genetic lottery and don't fall into any of the general "primary suspect" categories. Let's see how many more suspects "fall down" a lot while being interrogated. Harder to see a black eye on most of them, dontcha know.
Posted by: Science Avenger | May 30, 2009 12:33 PM
True enough, but I still go to bed at night grateful that we don't have President McCain.
What do you think would be so different?
Posted by: Oatwhore | May 30, 2009 12:43 PM
Posted by: FishyFred | May 30, 2009 1:04 PM
C'mon people, let's not sound like a bunch of Christianists declaring that an atheist bein elected ;sounds the death knell of Christianity' or the like.
This is a bad decision, yes, and all of us know how it can be misused -- though remember that most police interrogations these days are videotaped -- and, btw, the person who made this true in Illinois, and, after great political work, got this position supported by both the Police association and by the unanimous vote of both Democrats and Republicans in the legislature was an obscure black guy from Chicago named Obama.
But I expect this sort of Chickenlittleism from commentators on some of the other blogs i visit, not here. Oatwhore's post deserves a separate response, but look at what has actually been decided. A person still has the right to request a lawyer, and as soon as he does, the police have to stop interrogating him. But if he decides to confess -- and not all, nor the majority, of confessions are forced -- he doesn't have to wait for his lawyer to show up and tell him to shut up.
Again, it can be misused, and the decision should have come down the other way, but if he retracts his confession and goes to trial -- the only case where it would be relevant -- most juries will see the tape and see his demeanor.
This is hardly the 'first step' to a police state -- even if the term meant what Science Avenger thinks it means. If it were, then we must have been living in one in the pre-Miranda, Gideon, and Mapp days.
Posted by: Prup (aka Jim Benton) | May 30, 2009 1:09 PM
Just another example of the Obama administration adopting Bush administration positions and undermining constitutional protections.
And, as Obama, candidate of the Common Man, said the other night at the celebrity studded fund raiser in that blue collar town of Beverly Hills, "You ain't seen nothing yet."
Don't forget to buy your nationalized 2010 Camaro, folks! Meanwhile, the truly innovate American car company, Tesla Motors, gets big chunk bought by Mercedes. Yay!
And, hey, I voted for Obama, so I can damn well pick on him. Yeah, I got suckered in by the moderate talk. But as FishyFred said, the only real alternative was President Fossil and VP Sarah Palin. To this day I feel McCain did that to throw the election. I hated him just for running at that age. It was ridiculous.
Posted by: Quiet Desperation | May 30, 2009 1:47 PM
I'm well aware of the meaning of "police state", thank you very much, and for the misrepresentation as well. Semantics and straw men don't make for much of an argument, but I'm used to them.
First step, are you kidding me? It's just the latest. Now cops can not only pull me over for basically no reason (the wonders of selective law enforcement), but confiscate cash I have if its over some arbitrary amount, beat the shit out of me, lie in court to get a conviction (well documented by Ed), and oh yeah, now do it all without my lawyer around, and that's if they don't declare me an enemy combatant.
Nah, nothing to worry about there. Move along now, there's nothing to see here. U-S-A! U-S-A!
Posted by: Science Avenger | May 30, 2009 1:51 PM
This was the correct ruling by the court. Michigan v Jackson is an example of the judicial activism and pro-criminal jurisprudence of Stevens. Nothing in the Constitution says the a suspect must have his lawyer present in order to waive his right to talk with the police.
This idea that we're somehow a police state because we don't follow policies that do not conform with our Constitution is ridiculous.
Posted by: Ed Burke | May 30, 2009 2:03 PM
SA: While you did a nice job of calling 'strawman' -- which I defy you to back up -- you failed to respond to my point -- or demonstrate that you know the meaning of the term police state -- which always involves using the police powers to enforce a political agenda -- Naziism, Socialism, or the whim of the dictator of the moment. It does not mean 'police acting out of political control' or we would have lived in one in the time before the Warren Court made the great rulings I referred to.
(If you want to argue that the Hoover FBI was a major step in that direction, okay, maybe, but that did not survive J. Edgar's demise.)
Again, a 'police state' in any usage I am aware of involves political censorship, thought control, and supression of 'unpalatable ideas.' And you are just as wrong to see this happening here as are the ADF types that Ed so brilliantly mocks and exposes.
I am not denying police abuses -- that occurred as frequently under Jackson as they will after. But another point I made that you ducked was my point about the taping of police interrogations. (No, it's not perfect, and I can think of ways to get around it -- but then there are always imperfections, in any improvement -- that's where "The perfect is oft the enemy of the good" comes from.)
We both would like better policing techniques I'm sure. And, I hope, both of us realize that there are dangerous criminals and that the police are necessary.
But by screaming your exaggeration, you make the needed improvements -- at least -- more difficult.
Posted by: Prup (aka Jim Benton) | May 30, 2009 2:22 PM
I wonder what Obama's Supreme Court nominee thinks of his Justice Department's position.
Posted by: Taz | May 30, 2009 2:24 PM
This idea that we're somehow a police state because we don't follow policies that do not conform with our Constitution is ridiculous.
You ask for a lawyer, you should get a lawyer. The cops shouldn't get to beat you up for 10 hours or forget you're in cuffs without a bathroom in room #3, or leave you over night in a cell or use any other tactic so they can get you to waive what you just asked for.
This decision not only blurs the line, it effectively guarantees instances like this will occur with more regularity.
Posted by: NedFlanders | May 30, 2009 2:26 PM
Again, a 'police state' in any usage I am aware of involves political censorship, thought control, and supression of 'unpalatable ideas.'
By, say, effectively suspending habeas corpus? Or by making sure that anything you say while your civil liberties are being violated is admissible in open (or closed, mind you) proceedings against you?
Yeah, that would -never- happen.
Posted by: NedFlanders | May 30, 2009 2:31 PM
"If more people in the world where like Ned Flanders, we wouldn't need to go to heaven, because it would be already here." :D
[Seriously totally agree with you. What's the Miranda warning going to be like in 2017?
Fantastic! Welcome to Fascist States of Amerika]
Posted by: Homer Simpson | May 30, 2009 2:38 PM
You know, we can all be one big happy family again.
Look how easy the transition is:
U-S-A! U-S-A! U-S-A!
et voilà
U-K! U-K! U-K!
;)
Posted by: Eamon | May 30, 2009 3:25 PM
I'm sorry to be as vehement as I am being, and I have to again repeat that I think the decision was wrongly rendered, but the comments here are precisely the sort of inanities we so enjoy slamming when a Conservative, creationist, or Christianist makes them.
No, Ned, the case doesn't hold that you can't get a lawyer when you ask for him. It says that even if you have a lawyer you can waive the right to have him present at a particular sesion.
Yes, it will be abused. That's why I disagree with the decision. But it still is a long way from removing Miranda from the books -- and as I pointed out, we weren't a police state before the great three decisions because, yet again that's NOT what a 'police state' means.
As for what 'fascism' means, "Homer Simpson" should maybe read something about any of the fascisms that existed between the wars, not just the successful ones. They weren't regimes enforced on reluctant populations by a group of 'old men' industrialists and business interests.
"Fascism" was a populist youth movement -- not one of the initial fascist leaders were as old as Obama is when they took power, and they took power because they did twist the idealism of youth into a horrible thing. Remember "The Future Belongs to Us." They thought so because they knew how young they were -- the older conservatives thought they were too radical and not 'conservative' enough and the industrialists supported the right because there seemed to be an equal chance of the Communists gaining power, and they thought -- wrongly -- they'd be better under the Nazis. (During the Thirties, here and in England as well as in Germany and other parts of Europe, a lot of people believed that Democracy had proved itself a failure and the only choices were fascism and communism.)
Police corrtuption, police over-reaching is not exclusive to fascism or communism. We had it here, the English had their own problems in the sixties and seventies, and other democracies have had the same story to tell.
Posted by: Prup (aka Jim Benton) | May 30, 2009 3:35 PM
"Citizen Eamon!
Report your nearest detention centre immeadiately!
Do not pass 'Go'. Do not collect 200 pounds."
Harry Pierce, Section D. The Security Service.
Posted by: Secret_Agent_Man | May 30, 2009 3:37 PM
Again, a 'police state' in any usage I am aware of involves political censorship, thought control, and supression of 'unpalatable ideas.' And you are just as wrong to see this happening here as are the ADF types that Ed so brilliantly mocks and exposes.
Very ironic statement indeed. Haven't you heard of speech codes? Political correctness? Free speech zones? Try bashing affirmative action or gay marriage on a college campus and see what kind of reaction you get. Seems to me that the left in this country is already trying to suppress "unpalatable ideas". You can argue that conservatives oppose POLICIES they disagree with, but I don't think you will find nearly as many conservatives as liberals opposing your freedom to express your ideas. Remember Larry Summers of Harvard? He lost his job over expressing an "unpalatable" politically incorrect idea. It wasn't conservatives that were demanding his resignation. Leftists have already implemented hate speech laws in other countries like Canada, so I think it is reasonable to think we will see them proposed here as well. I think we are a lot closer to a police state than some think, particularly when you consider all the measures in place to spy on citizens (which has happened under GWB AND Obama) and the continued efforts (mostly by the left) to ban gun ownership.
Posted by: mroberts | May 30, 2009 3:47 PM
What, like the young men in their 40's & 50's found all over inter-war Europe?
The BUF in England and the White Guard in Australia (for example), were mostly made up of middle-aged professional men who feared the workers (like the frighteningly young boys working in coal mines) rising up and taking all they had worked (and fought) for.
Actually, I've read quite a lot on the rise of Fascism* in England, Portugal, Spain, Germany, France and Austria (as well as Australia), you? -DJ
*'know your enemy'
Posted by: DingoJack | May 30, 2009 3:51 PM
Mrroberts - 'Fascism' is simply a form of authoritarian right-wing government, I think you'd be hard pressed to anyone here who would support an authoritarian government from either end of the political spectrum.
As for "bashing Gay Marriage or Affirmative Action", what part of 'equal protection under the law', do you want to argue against?
Come up with a creditable arguement, and go for it!
Larry Summers? I thought he was 'fired' because of impropriety and fraud. I could be wrong, perhaps others can refresh my memory on that.
Guns don't guarantee freedom, if it were so, then every punk with a 'Saturday night special' would be the epitome of freedom. So why have a criminal justice system to lock them up? Why do law-abiding Americans hate America so? - ;) DJ
Posted by: DingoJack | May 30, 2009 4:10 PM
"I don't see the problem, they wouldn't be suspects if they weren't guilty."
****Libertarian1
In real life I am a physician in private practice just outside Newark NJ. Many of my patients are either Prosecutors or Defense Attorneys. There is not much but one thing they do agree on is over 90% of the people arrested are indeed guilty. That makes it difficult for the defense attorneys because they can't argue the facts. That is why technicalities are so important, that is the only way they can get their clients off.
Posted by: Libertarian1 | May 30, 2009 4:30 PM
"though remember that most police interrogations these days are videotaped"
Speaking of videotapes they had this little gem in the article about the case over at Scotuswiki;
"After about five hours, Mr. Montejo (the accomplice) requested an attorney. The detectives immediately ended their questioning; however, on their way out of the room one detective informed Mr. Montejo that the request had “let [the detective] down.” Ten minutes later a video camera recording the interrogation was turned back on, and it captured Mr. Montejo’s sobbing revocation of his request for counsel. The detectives later claimed Mr. Montejo “beg[ged]” them to allow him to reconsider his request for counsel. "
While I agree with a lot of what you are saying Prup, I do think that this will encourage potentially serious abuses. While it's possible, perhaps even likely that nothing untoward happened in those missing ten minutes; this decision would seem to create an incentive for police misconduct in that now if they manage to successfully strong-arm a waiver out of a suspect, that waiver sticks. Sure it's not fascism, but I think we're allowed to get angry about decisions that harm our civil liberties even if they aren't by themselves fascist.
http://www.scotuswiki.com/index.php?title=Montejo_v._Louisiana
Posted by: GBM | May 30, 2009 4:30 PM
also I'm an idiot, montejo wasn't the accomplice; sorry it's late here.
Posted by: GBM | May 30, 2009 4:35 PM
I entirely agree with you about the decision, and pointed this out -- not as well and not with a particular example. The decision was wrong, it is a small step backwards towards the type of police conduct we had before the Warren Court's 'Great Three' came down, it will be abused -- through police lying -- and I hope a future Court will reverse it.
I wasn't criticizing the decision, just the commenters who were Chickenlittling. Again, if we are going to criticize the sort of stupidity we hear from conservatives -- the kind, for example, that 'mrroberts' can be counted on to bring to any discussion -- we have to be as stringent when we see somebody on 'our side' non-thinking in the same way, or who misuse terms like 'fascism' or 'police state' in examples a Jonh Goldberg would be proud of.
Posted by: Prup (aka Jim Benton) | May 30, 2009 5:32 PM
And my excuse for my mistake -- I meant "I wasn't defending the decision, just criticizing the commenters..." is that this was the first thing I wrote after a brief nap.
Posted by: Prup (aka Jim Benton) | May 30, 2009 5:35 PM
Ed Burke: And what's to stop police from inventing or extracting confessions through intimidation, or claiming that the suspect waved his right to an attorney? The Jackson ruling went the way it did precisely to ensure that such things stopped happening, and make no mistake, before it they were rife. The presence of an attorney during questioning ensures a fair trial, a fair trail which is guaranteed under the Constitution, by providing a record of that questioning which is not entirely in the hands of the police, by ensuring that no official malfeasance takes place during said questioning, and by providing the suspect in question with a counselor possessed of the legal knowledge he may lack to defend him against any attempted malfeasance. In the same way that a police force exists to defend your right to be alive, even though the Constitution does not establish any such police forces, so too does the necessity of a lawyer's presence during questioning ensure your rights to due process.
As to the issue of what isn't in the Constitution, there's nothing in the Constitution that says a citizen's phone-calls, personal federal records, address, credit card information or phone number are, specifically, protected from government or private seizure, yet would you want any of this information openly available to any public or private citizen who wished it? There's also nothing in the Constitution that grants a parent the sole right to raise their own children, yet would you wish to live in a nation where kidnapping were legal? To say that a certain legal protection or practice is unconstitutional because it is corollary, and not primary, to the founding text is quite simply poor reasoning.
Posted by: Julian | May 30, 2009 5:35 PM
On a more theoretical note, I think there's another point that needs to be made here about the right to an attorney, but also about rights in general. The right to counsel is guaranteed by our Constitution. Rights are, as the Declaration declares, "inalienable" which is to say, not able to be alienated. Our legal system recognizes legal rights as as being inherent in the physical being of each citizen; as inseparable a part of her as her lungs, heart, or brain. How then can anyone "waive" their rights? It makes sense to argue that an individual's rights ought to be restricted if, in the excessive practice of them, they impinge upon the rights of another; but to say that they can be all together removed at an individual's consent, particularly when there is no outside source present to verify that consent, flies in the face of the very same documents that people like Justice Scalia claim to be reading strictly.
Posted by: Julian | May 30, 2009 5:59 PM
Julian Said:
What you just said was already illegal and is still is. Michigan v Jackson did nothing more but to put another impediment into policing. If the suspect waves his right to remain silent, there is no reason why an attorney should be present in order to validate the waiver of the right. 6th amendment right to counsel doesn't give the accused the right to have an attorney present when he or she waives the right to remain silent.
Posted by: Ed Burke | May 30, 2009 6:16 PM
Don't see the sense in your idea against 'waiving' one's rights. We do it all the time, and, in fact, the judicial system wouldn't be able to work at all if every person accused of a crime enforced his right to a trial instead of pleading guilty. In fact, I would argue that our basic right is the right to vote in an election, yet we can choose not to exercise that right, or, as ed once claimed, decide never to vote for a candidate with a chance of winning.
For that matter, we have a right to read pornography. That doesn't mean we have to do it if we don't want to, or sell it if we don't want to, etc.
And there are many times when I might have the 'right' to express opinions -- say in a lecture hall disagreeing with the speaker, but which politeness makes me waive them.
Posted by: Prup (aka Jim Benton) | May 30, 2009 6:35 PM
Nice blog post, Ed. And some very thoughtful responses. Leaves a very encouraging "we are all in this together" feeling, and that we might get it right some day, some how.
Posted by: greigos | May 30, 2009 8:02 PM
'Fascism' is simply a form of authoritarian right-wing government, I think you'd be hard pressed to anyone here who would support an authoritarian government from either end of the political spectrum.
There are lots of definitions of fascism, it is not just just a right wing thing. And if you support ever bigger government, you by definition support increasingly authoritarian government. Government is force, and if you increase the scope of its authority, it becomes increasingly authoritarian. There are people on this blog who support all manners of government meddling in people's lives. Universal health care? Cap and trade? Banning certain light bulbs? UN treaties that dictate how parents are to raise their kids? All these things are pushed by the left. It is ironic that the left claims it supports freedom when it continually pushes policies that make people less free. I am a less free person when some idiot bureaucrat in Washington dictates to me how to live my life. Lefties in LA recently even proposed banning black cars to combat global warming! California legislators even proposed a policy that would give the state control over every thermostat in every house in the state last year! Incredible. Sorry, but government should not have a say in what color car I drive, what type of light bulb I install, what temperature my home should be, how I run my business (so long as it is honest and fair), what kind of health care insurance I want, etc. I want less government in my life because it means I am more free. Lefties that push more big government policies are limiting freedom, not protecting or expanding it. There are plenty on this blog who wholeheartedly support bigger government.
Posted by: mroberts | May 30, 2009 9:49 PM
Maybe high school civics classes should include training that simulates questioning by police so that every student will know what to expect in an arrest and know how to relentlessly assert the right to remain silent. Sort of like SERE training for all citizens.
Posted by: Dr X | May 30, 2009 10:00 PM
You realize that the idea was not to "control" peoples' AC use or home temperature but rather to cut out AC *only* in a power emergency rather than blacking out the region, right? They already have the power to turn off your AC. By shutting down the entire grid when demand spikes.
You know, you'd probably panic a lot less and be less inclined to think that everybody except you is insane if you were to actually read the stories behind the crazy Rush Limbaugh headlines. Hint: Nobody proposed banning black cars.
As for the rest of it, I can't imagine how anybody would cause such an affront as to limit the number of sheep you graze in the commons.
Posted by: Troublesome Frog | May 30, 2009 10:26 PM
mroberts said:
If that's what you think, then you're wrong.
The General Social Survey asked the following question:
Here are the responses broken down by self-identified political views:
Extremely liberal (N=706):
Yes - 68.3% No - 31.7%
Liberal (N=3,109):
Yes - 68.8% No - 31.2%
Slightly liberal (N=3,465):
Yes - 68.7% No - 31.3%
Moderate (N=10,552):
Yes - 58.0% No - 42%
Slightly conservative (N=4,453):
Yes - 64.0% No - 36%
Conservative (N=4,071):
Yes - 61.8% No - 38.2%
Extremely conservative (N=887):
Yes - 55.8% No - 44.2%
Moderates are the most likely to want to abridge free speech, but conservatives are significantly more likely to do so than liberals across the board.
The effect is even more pronounced for the questions that replace the racist with a "homosexual" and someone who is "anti-religious". But that's largely because these are topics that conservatives are more biased against. Racism tends to be a bit more common among conservatives than liberals (not that overt support for racism is common among either in the absolute sense), but conservatives are still more likely to oppose allowing a racist to speak, and generally are more likely to want to abridge free speech in general.
Posted by: Escuerd | May 30, 2009 10:31 PM
mroberts wrote:
I love how you just project whatever you consider to be liberal on this blog. In the nearly 6 years I've been doing this blog, I've never even written about any of those subjects much less advocated them. They've never come up here. I'm sure there are some people who support some of those things, but why project such opinions in a place where they've never even been discussed?
Posted by: Ed Brayton | May 30, 2009 10:52 PM
mroberts wrote:
Cap and trade is a liberal idea? Just how clueless are you? Liberals initially objected ferociously to cap and trade because, they say, it grants rights to pollute. Liberals prefer direct command and control pollution regulation, although they are finally coming around to cap and trade because it works better. But only someone with their ass wrapped around their head would think cap and trade is a liberal's wet dream. Hell, I'd be willing to bet there's some liberal readers on this blog who don't like cap and trade much.
And as to whether cap and trade is unreasonable meddling in people's lives, the air is a commons and...well, Troublesome Frog already said it better than I could. Go read some of the literature on commons problems before you open up your mouth and stick your foot in it again. But glory be, your abysmal ignorance is astounding.
Posted by: James Hanley | May 30, 2009 11:40 PM
I'm not going to claim that the following are good responses necessarily, just hypotheticals...
what color car I drive,
What about someone who wants polished aluminum plate? That would be a blatant road hazard.
what type of light bulb I install
What about an area with a marginal power grid or a severe problem with air pollution from fossil fuel power plants? What about the chance of declining resources and increasing price of power?
what temperature my home should be
Same problem as the light bulbs, though in all likelihood this would be more flexible.
how I run my business (so long as it is honest and fair)
Some people have differing definition of "honest" and "fair". Some people really don't give a shit and screw their workers, customers, and vendors every chance they get.
what kind of health care insurance I want
Insurance is about spreading risk as much as it is taking care of your interests. When you buy an insurance policy, you are becoming a part of a community -- customers of the insurance industry. You can't buy into a shared-risk system and not be subject to rules as to what's available, and since insurance is overwhelmingly privately-run, there have to be rules as to what's acceptable for the individual policy holder, the companies selling the policies, and the customer pool in general.
If there's one thing I've noticed about these sorts of arguments for freedom, mroberts, it's that they only apply to political systems that are highly compartmentalized and to technologies and activities that have no side effects. Neither of the above exists in the real world.
Posted by: Brian X | May 31, 2009 12:31 AM
no side effects and, I remembered too late, no dependencies.
I'm currently reading a book called "Thinking In Systems" by Donella Meadows. It seems to be full of the sort of vital information that conservatives and libertarians routinely ignore when trying to formulate their philosophies.
Posted by: Brian X | May 31, 2009 12:33 AM
Ah, yes, dependencies. I need to slow down before hitting "Post".
Come to think of it, I start to find it very odd that so many libertarians are computer geeks. Unlike a factory worker, who has only a passing acquaintance with the supply chain he/she works from, a computer programmer is something like a CEO in the small -- the toolchain a programmer uses, including compilers, linkers, libraries, IDEs, and whatnot, is often heavily reliant on all of the above being capable of being treated as black boxes. I managed to fix a bug in a web browser not that long ago by simply swapping out a defective shlib for one from an older release. That I'm able to do that at all proves that the programmers responsible for the browser managed to do a commendable job in tracking dependencies between source files and libraries.
The weird part is that despite the fact that this not only can be done but must be done, that many programmers who no doubt have absolutely no problem at all doing this aren't able to translate this to political and sociological arenas. Scientists know that great discoveries are often small tweaks of large bodies of work -- in Newton's words, they stand on the shoulders of giants. Does the average libertarian computer geek not realize this, or just not care?
Posted by: Brian X | May 31, 2009 12:42 AM
James Hanley:
"But only someone with their ass wrapped around their head..."
And I'm betting it's a "combover"
Posted by: democommie | May 31, 2009 1:26 AM
Mrroberts -
Authoritarianism is a style of management/government, it is not rigidly dependant on the size of the organisation nor it's political bent*. There may be some weak correlation between these factors, however: "How oft has it been told? All that glisters is not gold".
You have the right to freedom AS LONG AS IT DOESN'T INFRINGE ON THE FREEDOM OF OTHERS.. Sorry you can't pollute the air, earth and water as you would like, beat your children or rip-off your workers and/or customers any way you would like, because it infringes on the rights of others.
Apart from that, what everyone else said: "The Tragedy of the Commons". - DJ
*'Fascism' is right of center, by definition. America, by virtue of it's strong right-ward bias (relative to other western countries), is particularly prone to this kind of authoritarian government. So stay alert!
Posted by: DingoJack | May 31, 2009 5:12 AM
Re dingojack
There used to be a radio call in show out of New York with a host who called himself Brad Crandall who put what Mr. dingojack said succinctly. Your rights end where my nose begins.
Posted by: SLC | May 31, 2009 6:12 AM
SLC - Indeed he was in admirable fooling (but I do it more natural), proving that truly brevity is the soul of wit. Thanks* - :) DJ
*Shakespearean overload whilst looking for a quote for another site, sorry.
Posted by: DingoJack | May 31, 2009 6:33 AM
i fail to see what a Supreme Court ruling has to do with the Obama Administration. Obama's administration, as of this date date, has not appointed 1 judge to the Supreme Court. In addition, the Supreme Court operates independently of the President & His Administration.
Sorry, but Obama Haters will have to come up with something else.
Posted by: PaulWall | May 31, 2009 10:22 AM
PaulWall,
Read more closely--it's about Obama's position on the case. That is relevant, however one feels about Obama.
Posted by: James Hanley | May 31, 2009 11:05 AM
Paul Wall wrote:
Perhaps you should read more carefully. The link was clearly stated in the post. The Obama administration argued for exactly this outcome. His Solicitor General, Elena Kagan, filed a brief and argued before the court asking the court to take the exact position it ended up taking (the same position that the Bush administration had previously taken, thus the ending statement of the post).
Posted by: Ed Brayton | May 31, 2009 11:08 AM
I think that it is high time we got rid of the supreme court, house, and senate because they put all of the power in a very small and select group of people (who we dont even get to chose, its either vote for Some Asshole A or Some Asshole B). We live in a very networked society so I see no reason why we cannot allow the people or at least a much larger group of us, which is rotated several times a year to make the decisions regarding our civil liberties. I am sick of having to pay for things that I never wanted or asked for, I am sick of being pushed around and forced to pay outrageous taxes for what I am freely entitled to, I am sick of having to pay bribes ( Taxes ) to get permits to run my business. I am sick of my having civil liberties to protect myself being given to the police and not myself. Police are nothing more than gangsters they have no limits, they can legally stop you for any reason, beat you, tazer you, and arrest you for not complying to the simplest order. Its time that the people started to take matters into their own hands, if a city has high crime rates then I say arm the citizens and give them the authority to protect what is theirs, thats how this county was meant to be.
"A fine is a tax for doing wrong, A tax is a fine for doing well."
Posted by: Time for real change | May 31, 2009 12:43 PM
"if a city has high crime rates then I say arm the citizens and give them the authority to protect what is theirs, thats how this county was meant to be."
That's worked out extremely well in places like Iraq and Afghanistan.
Posted by: democommie | May 31, 2009 2:13 PM
Brian X:
As a computer programmer, I may have an explanation. Software is unique in two ways from just about any other industry: first, the work of others without which what you're doing would be impossible is hidden--even textbooks normally just tell you to write code, compile it, and run--which allows someone to conveniently ignore the fact that other people had written the editors, compilers, operating systems, IDEs, libraries, APIs, created the processor instruction sets and bus interfaces, drivers, network protocols, and hardware. The usefulness of abstraction of software is that it allows the programmer to focus on the particular task, without worrying about all the components that are needed to make it work, but the abstraction treats these components as if they're magic, hiding the labor of other people that went into them.
Second, and even more important, in these days of the internet, the marginal cost of a software program is (effectively) zero. Delivering a program to ten people or a million will cost me almost the same amount, since the bulk of resources, time, and money will be in creating the program in the first place, unlike with any other good or service. If I design a new car, no one will be driving it without miners getting the raw materials, parts manufacturers making the components, workers on the assembly line, and an enormous support infrastructure. If I write a new program, it will cost almost nothing to put it up on the internet where anyone can download it.
That means the software industry has a core of skilled professionals and very little (not none, as some would put it) unskilled labor. It's almost impossible to predict what things would be like if that was the case for the world as whole--it would just be two different. The software industry is a giant anomaly.
The need for infrastructure is hidden by software abstraction. The need for the social safety net is hidden by the nature of the industry. Ergo...
Posted by: R. Sherman | May 31, 2009 4:33 PM
"That's worked out extremely well in places like Iraq and Afghanistan."
Im not sure whether or not you are trying to be sarcastic or agreeing with me but the facts are that a armed population will have lower crime rates than that of one with harsh weapons bans.
Posted by: Time for real change | May 31, 2009 4:40 PM
Time for real change:
I think you're a moron. Is that clearer?
Let's have some citations for that claim. I'm guessing that the many thousands killed by marauding bands of heavily armed folks in the Congo, areas of SW asia under the control of islamic fundamentalists and such will tend to skew the numbers a bit.
Posted by: democommie | May 31, 2009 5:02 PM
Democommie, I was waiting for someone to bring up situations like that. You see the armed people who go around killing, raping, and stealing in the Congo and SW are hardly the common population, they are organized forces of rebels and troops sent to kill in order take land and power for themselves. They are the same as any common street gang except on a huge scale, and with more resources than the people they are fighting. If only the common people could get their hands on weapons and resources then they could FIGHT BACK instead of being slaughtered and enslaved.
I think that you my friend are the moron for equating an armed population of common people to a terrorist regime.
Posted by: Time for real change | May 31, 2009 10:23 PM
Sometimes I just want to stay and fight for the Constitutional Republic, but with the increasing Big brother, makes me want to leave the US.
Posted by: Joe | May 31, 2009 11:19 PM
This SC Decision is just the first, small step. And most of you have reacted exactly as they wish: "It's no big deal". Incrementally, a little at a time, they'll eventually get rid of Miranda completely. By that time, it'll be too late. And, from what I'm reading here, most of you won't care even *then*. As long as they don't come for *you* -- after all, *you're* not guilty of anything! And they only arrest the guilty, right?! -- who cares! Two words for you folks: The Holocaust.
Do you know how many Jews, and other so-called "undesirables", held on to vain hope, as right after right was dismantled, and horrendous laws, aimed at them, were enacted? Instead of fleeing the country when they had the chance -- like, say, EINSTEIN -- they kept telling themselves that it was OK (like soooo many posters here). And those poor, self-deluded souls ended up in death camps. But, geez. NO WAY it could happen here.
Except, why do I get the feeling if they rounded up, for example, the "Christianists" (what the h3ll is *that* hatred about?!) for "special treatment", very, very few here would protest. In fact, looks like most of you would think, "Good! That new Miranda thing-y is working!" Most of you are so typical -- "as long as *I'm* fine & left alone, everything's fine!"
Posted by: MH | June 1, 2009 2:19 AM
Time For Real Change:
That's what I get for arguing with an idiot. Those countries have been awash in violence for decades. Every time more arms are introduced more people die. I have a suggestion; go spend a year in a country like Somalia, with all your guns. Let us know how that works out for you.
Posted by: democommie | June 1, 2009 7:14 AM
So then you are saying it is better to watch the current regimes stay in power over a poor and helpless population. Your saying that we should let the bad guys win, that we should just give in. You are such an arrogant elitist, how do you think the United States gained it's freedom from the British, how do you think Israel keeps it's independence from all the nations who would love to see it burn. Your idealist mind cannot see that the violence in those 3rd world nations has nothing to do with the ordinary citizens defending their property and cities from crime like i mentioned earlier. The 3rd world nations you speak of are in total political turmoil, there is no system for letting the people chose what they want, it's basically whoever can cause the most fear and destruction to the poor and exhausted populace makes the rules. If only those poor people could overthrow the regimes they were stuck with. I admit that if I went to Somalia alone with just my guns I wouldn't fair to well for several very obvious reasons but who would? My point being that it would take either a large invasion force or a committed rebelling population to overthrow the regime.
I am not an idiot by any measure, you just have a very weak argument and have resorted to childish name calling to try and make me look like a fool. I think that if you wish to argue my original point, "if a city has high crime rates then I say arm the citizens and give them the authority to protect what is theirs, thats how this county was meant to be." then you should try to use information relevant to the topic of self defense, not genocide and terrorism.
Posted by: Time for real change | June 1, 2009 10:17 AM
Prup & Ed Burke -
You seem to be making the naive assumption that everyone will play straight and the only people who will waive their right to counsel after having invoked their right to an attorney will do so without coercion. Do you understand why Jackson - the ruling that was just overturned - happened in the first place? Here's a hint - the police weren't acting in good faith. They pushed the suspects to talk to them without their attorneys present, in one case not informing the suspect that an attorney had been appointed, in the other questioning him early in the morning, before he could consult with his attorney.
We don't know what happened in those interrogations, but in both cases the defendent "waived" his right to counsel for that particular session. While it is unlikely that they were abused illegally, there is every reason to believe that the police used everything in their legal arsenal to coerce those men into waiving their right and confessing.
It is already all too easy for the police and prosecutors to convince suspects to waive their rights. They can bring a lot of pressure to bear, even when a suspect has an attorney (court appointed att. don't generally discourage this) and even if they aren't necessarily guilty. Telling someone that if they decide to go to trial, things will be so very much worse for them is a huge motivator for confessing.
There are just way too many ways for police and prosecutors to use this chink to abuse justice even further. Interrogations are pretty well fucked as it stands and this will just exacerbate the problem further. If so many police officers and prosecutors weren't so corrupt, this wouldn't be such a necessary protection - but they too often are and it is absolutely necessary to ensure justice.
Posted by: DuWayne | June 1, 2009 10:58 AM
Time For Real Change:
You ignorant chump. You think that guns make you free? Most of Western Europe has a much lower murder rate than the U.S. and far more stringet laws regulating gun ownership. Good luck with your logic courses.
Posted by: democommie | June 1, 2009 11:04 AM
Perhaps guns are not always the answer, perhaps they themselves do not bring freedom. I will not argue that, but isn't freedom the right to do or say anything you want. The right to protect your family, the right to protect yourself and your neighbors. When a government says no to gun ownership they are saying that they do not trust their citizens, that someone else will come to the rescue, and if government expansion is needed that no one will stand in their way.
I live just outside East ST. Louis, an area with high crime and murder rates, in the last year there have been several murders within walking distance from my home. Just this year, in my own neighborhood houses have been broken into (across the street for that matter) and my friend was carjacked by 3 armed men. I sleep a little more soundly at night knowing that if someone breaks into my home, I only need reach to the side of the bed and grab my rifle. I don't have to stay on hold with a 911 operator and wait 20minutes for the sheriff to arrive. That is all the logic I need, and if you have a problem with it then you can go to hell.
"Its better to have a gun and not need it, then to need a gun and not have it"
Posted by: Time for real change | June 1, 2009 11:51 AM
Time for a real change:
"You have the right to freedom AS LONG AS IT DOESN'T INFRINGE ON THE FREEDOM OF OTHERS." Like the freedom for a young black man to walk through a white neighborhood without a bunch of middle-class vigilantes shooting him dead because some guy told some other guy that someone (possibly black) was seen near a liquor store, somewhere, that got held up three days later. That kind of freedom. -DJ
Posted by: DingoJack | June 1, 2009 12:16 PM
Time For A Real Change:
Wait. I thought you said more guns would make things safer? Oh, did you mean, more guns to arm, white, GODLY, KKKristian mens? Okay, now I understand. I've lived in some pretty dangerous neighborhoods--I've moved.
Posted by: democommie | June 1, 2009 2:21 PM
They wouldn't be suspects if they weren't guilty? What happens when I accuse you of murder for no reason, dolt?
Posted by: Reilus | June 1, 2009 2:41 PM
Reilus,
Click the link! lol.
Posted by: James Hanley | June 1, 2009 4:12 PM
Certain evidence in this case appears to have been obtained from Montejo after Montejo had been appointed an attorney. After this appointment and without his attorney being present, the police convinced Montejo to go with them to find the murder weapon. During that trip Montejo wrote "an inculpatory letter of apology to the victim’s widow," which letter he apparently gave to the police. All this was without his attorney being present to counsel him. However, since Montejo apparently did not request counsel's presence at the time he was questioned by the police the court has ruled his confession admissible. This is contrarty to the rules in the Michigan v. Jackson case.
The confusion and material error of the SCOTUS in Montejo v. Louisiana is as follows:
Montejo followed the Jackson case rules in his defense. At the time of doing so, Jacksonhad not been overturned and was in effect. When the SCOTUS overturned the rule in the Jackson case, the court made it's ruling retroactive to the time of Montejo's defense. This is absolute insanity. It is similar to “ex post facto law.” http://dictionary.reference.com/browse/ex%20post%20facto
That insanity being noted, we still have rights to an attorney according to Montejo v Louisiana, 07-1529, Decided May 26, 2009.
Held 1(c) p. 2:
“Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at 474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146, no subsequent interrogation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient.” Montejo v Louisiana, 07-1529, Syllabus, 2.
Posted by: ac | June 3, 2009 12:38 PM