Bob Schwartz

Tag: Constitution

Publius Speaks to Congress

Federalist Papers
Publius Valerius Publicola (“friend of the people”) was a Roman consul who helped found the Roman Republic circa 509 BCE. When James Madison, Alexander Hamilton and John Jay began publishing The Federalist Papers in 1787, they attached his name to their arguments for adoption of the Constitution.

We don’t know how many current members of Congress have read the Federalist Papers—not even all 85 papers, maybe just a few. We also don’t know how many senior members of the executive branch have done so. We can assume that all nine Supreme Court Justices have; these are, after all, an essential part of the legislative history of the Constitution.

Every time you see politicians brandishing the Constitution as a weapon, well-meaningly or just plain meanly; every time you hear a half-baked political argument or analysis that makes absolutely no sense, but is based mostly or entirely on emotion or ambition; every time you wonder whether a particular politician is taking the best interests of the country to heart or is just interested I getting ahead, the Federalist Papers are your talisman.

The Federalist Papers are a brilliant combination of careful philosophy and political realities—a balance between aspiration and actuality, between the way we want to be and the way we are.

When we hear today about “grand bargains” being struck in Congress—or often not being reached at all—you have to laugh. The very same founders who are treated as saints or even gods had to make the grandest of all bargains so that this nation could exist and endure. And in the Federalist Papers, we find the philosophical intelligence, the political courage and the candid self-awareness to expose how narrow interest and pettiness can stand in the way of solutions. If anything has changed in more than two centuries, it’s that we seem to have fewer Madisons, Hamiltons and Jays front and center in our national discourse:

A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.

An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good.

It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.

Federalist No. 1

Tsarnaev and Miranda

Miranda Warning
Dzhokhar Tsarnaev, suspect in the Boston Marathon bombings, is now in custody and in hospital recovering from gunshot wounds. The Justice Department has announced that it will not be giving him a Miranda warning before initially questioning him, under the public safety exception to the need for such warning.

In Miranda v. Arizona (1966), the Supreme Court established guidelines for the taking and use of statements by suspects in custody. In very brief summary, if a suspect is in custody and being interrogated, statements made will be admitted into evidence only if he has been properly warned about his right not to talk, about the potential use of his statements for self-incrimination, and about his right to have an attorney. The various versions of the Miranda warning reflect this decision, and embody the protections of the Fifth and Sixth Amendments.

A narrow exception to Miranda was established in New York v. Quarles (1984)  . In an age of terrorism and the prosecution of terrorists, this so-called “public safety exception” has become the focus of intensive analysis and application—along with a push for its expansion.

In Quarles, a victim of rape pointed police officers toward her armed assailant. The police pursued him into a supermarket:

Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that “the gun is over there.” Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona. Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent’s initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent’s other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

The Supreme Court reversed the New York courts and created an exception to Miranda, when the interrogation was aimed at preventing further harm and enhancing public safety:

Procedural safeguards that deter a suspect from responding, and increase the possibility of fewer convictions, were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege against compulsory self-incrimination. However, if Miranda warnings had deterred responses to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting respondent. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area.

The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

It is useful and enlightening to read the dissent by Justice Thurgood Marshall, joined by Justices William Brennan and John Paul Stevens. Justice Marshall, whose practical understanding of constitutional rights was second to none (see Brown v. Board of Education), had difficulty with the trading away of such a fundamental right, even for something as paramount as public safety. He had an elegant solution: Please do interrogate without a Miranda warning—just don’t expect to introduce the answers at trial:

The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.

There is one thing that in the early aftermath of this dynamic story can be missed: Whatever he did, whatever we believe about what he did, however vital his knowledge is, Tsarnaev is under no legal obligation to say anything and has the constitutional right not to say anything that could be used against him.

The Justice Department has invoked the public safety exception: it will not yet Mirandize Tsarnaev. In part, they may be trying to reserve the right to use at trial any of the statements he makes in response to questions such as “Are there more IEDs? Who else is currently involved and dangerous?”. Maybe more significantly, they simply don’t want him—as they don’t want any other suspect—to prematurely stop talking. They won’t be telling him yet that he has the right to remain silent or to have an attorney.

But…not telling him he has these rights doesn’t mean that he doesn’t already have them. He does. A Miranda warning does not magically grant a suspect those rights. The much more magical Constitution and Bill of Rights do.

It is not clear that Tsarnaev needs a reminder of those rights. He is by all accounts a smart and educated young man, even if by recent actions a horribly misguided and tragic one. Almost all television viewers are expert on Miranda warnings anyway; even the most law-abiding American has heard them hundreds of times. But if he should decide to say nothing, other than his desire for a lawyer, in America there is nothing police or prosecutors can do. What we may justifiably feel and believe about him and what he and his brother perpetrated won’t change that, and shouldn’t. We didn’t write these self-imposed limitations for easy cases. We put them in place as a test, to see just how deliberate and fair we could be, when all we want is swift and hot-blooded justice. We wrote them to remind ourselves that we are better than that—even when we for a moment and for good reason don’t want to be.