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Miranda: Turning Popular Sovereignty on its Head

Posted: May 15, 2013 at 4:01 am   /   by

Three more individuals suspected to be involved with the Boston bombing have been taken into custody. Two of them may have had student visas and the third is apparently an American citizen.

Of course, the Miranda debate will be reignited in light of these arrests, and we’ll now proceed to discuss in retrospect who should be declared an “enemy combatant,” who is a citizen, and who is entitled to a reminder by the government of their right to remain silent. All of this debate is madness.

The Miranda warnings are a product of judicial gymnastics that began in the 1960s. The 1966 Miranda case created the rule for custodial interrogations, and the courts have enumerated exceptions that have created even more confusion. All along, the plain language of the Fifth Amendment has been disregarded, ignored, and conveniently forgotten.

The rule of law is critical, and the U.S. Supreme Court has made it clear that any interrogation of suspects who are in custody must be informed of their right of silence, counsel, and even the danger of speaking to the interrogator. This is understandable, but the point is that Miranda should not be the rule.

Miranda may be good policy, and law enforcement agencies should have discretion to implement Miranda-type rules. State courts and legislatures could amplify their own laws to require Miranda. However, for the U.S. Supreme Court to stretch the Fifth Amendment to this degree is absurd, even 37 years later.

The Fifth Amendment requires that “no person . . . shall be compelled in any criminal case to be a witness against himself.” If we are interpreting the Constitution, how did we manage to manufacture the liberty to be informed of one’s right to remain silent? Why don’t we do the same thing for the right not to consent to a search?

Have we not turned the idea of government on its head? The power and rights begin with the people. Thomas Jefferson referred to this idea as the principle of popular sovereignty and boasted that this was a defining difference between America and other nations. However, we are now told that government – the very entity that derives its power from the people – should now remind its superiors, namely the people, of the right to be quiet. And if the government doesn’t, criminals potentially walk when the reality is no constitutional freedom was violated.

Paul Cassell, a professor at the University of Utah, claims that as many as 28,000 criminals walk every year as a result of Miranda mishaps by law enforcement and that confession rates have decreased since the Miranda Court’s decision. University of Michigan Law Professor Yale Kamisar argues that those numbers are trumped up and are not supported by any comprehensive study. Both of these arguments, while important for policy purposes, have little to do with constitutional interpretation.

From a purely constitutional perspective, these Boston suspects should be brought into a room and interrogated. As guaranteed by the Fifth Amendment, they may not be coerced, made promises of leniency, or threatened. However, reminding them of their right of silence will not stop police misconduct. Even in light of Miranda, there are still officers who lie, manipulate, and even abuse suspects just as there are suspects who do not comprehend what the warnings intend to convey and who, according to the American Psychological Association, incriminate themselves unwittingly.

This country survived for nearly 200 years requiring that the government prove that any confessions were extracted voluntarily. Now, we are told that the reading of a few magical words suddenly makes an interrogation potentially to comply with constitutional standards. Let’s introduce policy where necessary but ensure that policy and constitutional interpretation remain separate and distinct.


Shane Krauser is a partner with the firm of Davis Miles McGuire Gardner, the director of the American Academy for Constitutional Education, the spokesman for, and the chief instructor of K-Force Vanguard. Follow him on twitter: @shanekrauser


Shane Krauser

Shane Krauser is the director of the American Academy for Constitutional Education, an attorney in Arizona, the spokesman for Freedom Fires, a radio talk show host, an adjunct professor of constitutional and criminal law, and the chief instructor of K-Force Vanguard. He is also the primary contributor of Freedom Fires, is a former prosecutor of 12 years, and has dedicated his life to defending freedom and the Constitution. He is an author, a political commentator who has appeared on national radio and TV, and a writer whose op-eds have been published in numerous national media outlets.

Shane did his undergraduate work at Arizona State University and received his law degree from the University of Utah. He is married to Janelle Krauser, and they have six children. Follow him on twitter: @shanekrauser

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Miranda: Turning Popular Sovereignty on its Head