Tag Archives: law

eviscerating Miranda

The Supreme Court on Tuesday released its decision in Berghuis v. Thompkins, reversing the 6th Circuit and eviscerating the simple bright line rule of Miranda: The police must advise suspects of their rights; for responses to police questioning to be admissible in court, the suspects must make a knowing, intelligent and voluntary waiver of those rights. This 5-4 decision, penned by J. Kennedy, eviscerates the letter of the law — it’s bright-line-ness — as well as the spirit of it — eliminating the incentive for cops to mistreat suspects through browbeating and other forms of coercive behavior.

hat tip to michele, who was listening to npr and found out the opinion was out, when for some reason the NYT failed to cover it, at least in any meaningful way …

Rand Paul, weasel extraordinaire

Oh man, Rand Paul was on Rachel Maddow weaseling around a straight-up answer on his views of whether the federal government can prohibit discrimination in public accommodations.

A, I thought this guy was supposed to be glib and personable? This was one of the least smooth, least adept weaseling’s I’ve ever seen. Maybe that’s all just due to Rachel Maddow, who is a far more kick-ass journalist than most in terms of straight-up asking for a yes/no answer (and still not getting it).

B, wow, is he just stupid, or completely disingenuous, about the differing rationales that might justify (a) a ban on guns in establishments serving alcohol versus (b) a ban on racial discrimination?

C, again, is he just stupid? Or did he not realize that by picking on the ADA that he was also picking on the rationale underlying all civil rights laws? and that his ass would be busted on this issue? not because it’s “hypothetical” but because it’s real, live, and current — as even he must concede, since he’s picking on the ADA!

D, He’s seriously confused about law and regulation. Nobody has ever explained to this guy one of the fundamental rationales underlying the permissibility of banning some forms of private behavior — that state action would in fact otherwise be involved in enforcing those private behaviors. If someone is trespassing on your private property, you can call the police and get them to bust heads for you. That’s state action. You can sue the trespassers and get the courts involved. That’s also state action. So allowing “private businesses” to ban Black people or gay people necessarily involves state action, since the definition of a “civil right” involves the possibility of invoking the law to enforce the right. He’d like to hand that right not to individuals of color (or queer folks, or disabled folks) but instead to racist, homophobic, short-sighted business-people. Nice.

Along with other areas of law, Paul must also be unfamiliar with the long tradition, far predating the Civil Rights Act, enforcing different rules on hospitality and traveler businesses and such public accommodations. (eta: that’s common carriage, folks, although the wikipedia article is woefully inadequate on the history.)

E, Entirely unsurprisingly, he is also seriously confused about what “institutional racism” is, apparently thinking it is just state action.

F, I like how Paul pulls out the “It’s interesting…” line just before he weasels. I myself have a tendency to pronounce that things are “interesting” but not, I think, when I’m weaseling; more when I think there’s some contradiction or something a little surprising that piques my interest.

Anyway, I’ll be interested to see if Rand Paul & his libertarian policies really get him up to the U.S. Senate. How backwards-ass are my old neighbors in Kentucky? I guess we’ll find out come November.

another exercise by the military-industrial-entertainment complex

The entertainment industry has succeeded — at least theoretically — in passing off more of their enforcement costs to the federal government — i.e., the taxpayers. Nice use of government dollars at a time of financial crisis, Congress! Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act” (“PROIPA” ?) which, besides shelling out a lot of money to make the Dept. of Justice hunt down copyright infringement, also creates the office of the Copyright Czar.

Will the Copyright Czar be as effective as the Drug Czars? One can only hope.

Variety 10/13

* PS — double points if you can identify the source of the phrase “military-entertainment-industrial complex”, without Googling it. Hint: It’s from a pop culture source in 1996.

of penumbral emanations and scholarly trends

Speaking of penumbra yet again (1, 2) , I had previously blogged about a Circuit split on laws banning sex toys — it was Valentine’s Day, and I was feeling a bit whimsical, so I wished for a “penumbra” that would strike down stupid laws.

LawPundit “ha[s] an opinion” on my wish for a penumbra that covers “no stupid laws”; I thought it was pretty amusing & worth checking out.

LawPundit also annotated my use of the word “penumbra” with a link to google:define:penumbra. Unfortunately, I don’t think that quite captures the legal nuance. Legal scholar/lawyer-types know the reference, of course, but for those non-lawyers, “penumbra” is famous in Constitutional law as a reference to Griswold v. Connecticut. In Griswold, the Supreme Court overturned a Connecticut statute that made it a crime to buy contraceptives. Justice William O. Douglas, looking at the Constitutional guarantees of individual liberties as a whole, wrote that the statute violated the individual right to privacy, which could be found looking at the “penumbras” and “emanations” of Constitutional protections. The language is a little funny, but standing alone, or with Eisenstadt (which extended to unmarried people the right to buy contraception), this case, and the words “penumbra” and “emanations”, would provide simply a pleasant diversion to while away the afternoons in contemplation of rarely-used words in legal opinions. The concept of “penumbras” of a set of enumerated rights is not that bizarre, especially in light of the Ninth Amendment (which notes that “the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people”) and the Tenth Amendment (which states clearly that powers not delegated to the US, nor prohibited to the States, “are reserved to the States respectively, or to the people”). These Amendments practically beg for penumbral analysis, and “privacy” (a concept theoretically defined and refined only in the last 125 years, but whose spirit animates much of the Constitutional protections) and “autonomy” (not considered one of the Constitutional “rights”, per se, but I keep wishing) are ripe concepts for that sort of analysis.

But conservatives have freaked out when the penumbras that protect privacy were extended to abortion in Roe v. Wade and to other matters of sexual privacy since then, and and now excoriate the very notion of penumbras. And emanations. (One could argue that the very essence of conservatism is a certain distaste for emanations.) So, “penumbras” the concept has acquired a certain air of disrepute in many legal circles, because even scholars who find it perfectly reasonable to examine the Constitution as a whole as well as in its discrete little parts, tend to back off a bit from Douglas’ sweeping penumbras and emanations, so successfully have right-wingers trashed those ideas. A damn shame, because the concept is perfectly reasonable, and it’s only the rabid dog opposition to abortion that has cast the shadow over Griswold and its penumbral emanations.