Gordon L. Weil
Maine’s highest court revealed last week how the country is
changing. It found that the U.S. Supreme
Court is intentionally eroding an essential American right.
The absolute rule of the British king, who denied people
their natural rights, brought the American Revolution. In the United States, personal freedom was always
to be protected from a powerful government.
No person can be required by a government to be a witness
against themselves. They cannot
involuntarily give evidence against themselves.
They can remain silent and not answer questions or undergo interrogation,
and they cannot be punished for their silence.
Some states required the Bill of Rights as a condition of
their ratification of the Constitution, and it was adopted. Its Fifth
Amendment included protection against testifying against oneself, applying
to the federal government and later to all states.
In 1966, the U.S, Supreme Court issued its famous Miranda
decision, requiring the police to inform people of their right to remain
silent. The Miranda warning became a
regular part of police operations, sometimes frustrating law enforcement.
In Miranda, the Court said: “If the individual indicates in
any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.”
In reviewing that requirement, the Maine
Supreme Court found that, “[a]s time went on, the Supreme Court began to
erode the standards by which waiver and invocation of the privilege are judged.”
The erosion consisted of obstacles to people’s natural right
to remain silent or to have legal advice before answering. The Supreme Court, possibly reflecting public
sentiment, began making it more difficult for a person to benefit from what had
long been considered an inherent right, deserving the automatic respect of
government.
In 1994, the Court, with a new Reagan-oriented majority, ruled that
unless the person made a clear request for legal counsel, the police would have
“no obligation to stop questioning the suspect.” The Court said: “In considering how a suspect
must invoke the right to counsel, we must consider the other side of the Miranda equation:
the need for effective law enforcement.”
There had been no such “equation” in the Constitution; the
right to silence and a counsel are unquestionable. The Court invented the supposed equation. The interests of the government, from whom
the person should be protected by the Bill of Rights, suddenly became balanced
with a person’s rights.
In 2010, the Court went even
further. It ruled that if the
suspect did not answer a question about whether they understood their rights
and simply remained silent, they had not clearly asserted their right and could
be questioned by the police. Their lack
of understanding or feeling intimidated by the police presence were not factors
to be considered.
In this case, the suspect remained silent for two hours and
forty-five minutes. Yet remaining silent
was not interpreted as a sign that they wanted to remain silent. Instead, the police kept asking questions. Because the person finally responded to a
question, the Court ruled that answer constituted the waiver of their rights,
which they had not clearly claimed.
In short, simply keeping silent, even for a lengthy period
of questioning, did not mean they had clearly affirmed their right to remain
silent. To have the right to remain
silent, you cannot remain silent.
This watering down of the Fifth Amendment right and Miranda’s
“indicates in any manner” provision, was done in the name of assisting law
enforcement. Under a Court now dominated
by Reagan and his conservative successors, law enforcement would come at the
expense of individual rights.
Authoritarian government is making a comeback.
Many criminal cases concern violation of state laws. Each state has its own constitution, and may
differ with federal standards, provided it supplements and does not weaken
those standards.
The Maine Supreme Judicial Court, relying on the state
constitution and its many previous rulings, declared the state has maintained the
absolute protection of the individual. “We
have long held that the Maine Constitution provides greater protection against self-incrimination
than that of the United States Constitution,” it said.
The U.S. Supreme Court, the current neo-conservative edition,
states that the individual retains their constitutional and natural right only
if they clearly assert it. If not, they
may be questioned.
The Maine Supreme Court, the historically faithful edition,
maintains that the individual retains their right unless they clearly waive it. In Maine, the police cannot interpret a
person’s uncertainty or silence as a waiver of the right to remain silent.
Justice Arthur Goldberg once wrote in a
Supreme Court decision: “If the exercise of constitutional rights will thwart
the effectiveness of a system of law enforcement, then there is something very
wrong with that system.” That is where
authoritarian conservatism is bringing the U.S.
[Next column covers the critical role of today’s Supreme
Court.]
