Couple days ago I had the privilege of speaking to a group
of students at Saint Leo University who
are studying Criminal Justice.
The subject was the Miranda warning; that rote recitation of
rights which were the usual finale of Jack Webb’s famous Dragnet TV series.
I took the occasion to explain to the students that Judges
do not pass laws; they make decisions. Wise decisions become precedents. The
Latin phrase is stare decisis which
means, “let the decision stand.”
Precedents are valuable because they tell us what the court
did and why they did it. When another case comes along, which presents the same
reasons for doing the same thing, the courts will typically apply the same rule
and come to the same conclusion.
But a precedent only has value because it records what the
court actually did. Later courts follow precedents when they do what the
previous court did. In the Miranda case, the United States Supreme Court in
effect said to the lower courts: “don’t do what we did, do what we said.”
Putting it another way,
appellate courts rule by example not by decree.
In the Miranda case, the Supreme Court reversed the
conviction, saying they did it because no warning was given. That is what they
did. But what they said was that their ruling was not to be a precedent. They
didn’t want lower courts doing what they did.
Had the rest of the courts followed the decision in Miranda,
by doing what the Supreme Court did, thousands of convicts would have been
released. The Supreme Court reversed the Miranda conviction, then
promptly said their decision was prospective only.
Bottom line is that the Warren Court knew darn well that the
Miranda conviction didn’t violate the Constitution. If it had, then all other similar convictions were also invalid. The Warren Court was well aware that they were proclaiming a new rule of law, unrelated to the federal
constitution.
That explanation prompted a vey bright student in the back
of the room to pose this question, “Isn’t the Constitution supposed to be a
living document?”
I sensed that she was advancing the familiar defense of an
activist judiciary: Times change; the Constitution was intended to last for a
long time, therefore it was intended to change with the times.
That familiar proposition is true, of course. But it doesn’t
answer the question of how the constitution is supposed to be changed. George
Washington made it clear: the constitution is obligatory unless and until it is
changed by the explicit and authentic act of the whole people.
The pronouncement of an unelected nine member Supreme Court
is not the explicit and authentic act of the whole people.
The constitution is the compact between the people and their
government. It expresses the consent of the people to be governed in a certain
way by leaders chosen in a defined manner. It is fair to say that a
constitution deals with the who and the how of government. Legislatures decide
the what.
It is inconceivable that the people of the United States
have knowingly tolerated the usurpation of power that has tainted the decisions
of the Supreme Court during my lifetime. The only explanation is the dumbing down of public knowledge about our constitution.
The current court is a virtual cartoon of self aggrandizing
elitism. All nine member of the court are graduates of only three law schools;
Harvard, Yale and Columbia.
Think about it. There are over 200 accredited schools of law
in the United States. The mathematical probability of all nine justices being
educated at only three of those schools is something like 0.0000585 to one.
That august body has become a good old boy and girls club.
It’s time for change.
An Article V Convention can set higher standard for this high court.
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