Miranda Rights to Foreign Detainees: The First Step to a New World Order

According to a post on The Blog of the Weekly Standard, the “Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee.”

That’s right. Overseas FBI agents are being required to read Miranda rights to high value detainees captured in the theater of war. The first right is of course the right to remain silent. Now how the hell are you supposed to protect your country from terrorists when the first thing you tell a suspected enemy combatant is that he has a right to keep his mouth shut?

Miranda v. Arizona (1966) was a Supreme Court decision and was a corollary to Griswold v. Connecticut (1965), another Supreme Court decision. In Miranda, the Court created seemingly out of whole cloth the right to remain silent. It is no where in the U.S. Constitution. And in Griswold, the Court created the right to privacy. Again, there is no such right in our written Constitution. In both cases, the majority created a brand spanking new constitutional right by arguing that such right derived from “penumbras” and “emanations” from our Bill of Rights. Such logic is obviously a very slippery slope. But forget the merit of such rights, and whether they actually exist. That’s really a discussion for another day. The Court has recognized them. They’re here to stay.

Once you declare that such detainees (usually enemy combatants) are entitled to our constitutional protections, one of the implications is that now the enemy combatants are presumed innocent until proven guilty. That is surpassingly absurd not only because it adds another provision to the rules of engagement (which already severely hamstring our military), but more importantly because the necessary premise of war is that both sides are guilty of attempted and premeditated homicide! The whole point of war is to achieve victory by death and destruction of human life. There’s absolutely no reason to go through a trial process to determine whether the enemy combatant is guilty.

And herein lies the fundamental problem. The system by which we adjudicate our own citizens must necessarily be different from the system by which we adjudicate foreign detainees and enemy combatants. This is because, as previously mentioned, the premise upon which an individual is detained is completely different. When a United States citizen is detained, because our Constitution applies to that individual, he enjoys the presumption of innocence. A foreign detainee does not and should not. The premise of his detention if war.

Clearly, this is another step toward “internationalization”, which ineluctably means a reduction in our national sovereignty. Once we begin extending our sacrosanct Constitutional protections to foreigners, the exclusivity and sovereignty of our Constitution must necessarily go along with it piece by piece. We’ll soon be welcoming the New World Order.

American Confucius

A Constitutional Right to Gay Marriage? A Foolish Delusion Indeed

As my opening salvo I have decided to rant about today’s big news from good ‘ole California. Let me preface by saying that I do not take moral or personal issue with gay marriage here. As Senator Goldwater himself said, “there is no gay exemption to the right to life, liberty, and the pursuit of happiness.” Instead, I lament the legal implications of judicial activism.

In my first year constitutional law class, our professor quipped as a matter of factly that when we as law students consider who to vote for in the next presidential election a primary consideration will be the candidate’s judicial philosophy and his promise to appoint judges who embrace a particular school of judicial interpretation. The class erupted in sarcastic laughter, as in “No we won’t. Who cares? Remember? It’s the economy stupid.”

Obviously, it was early in the semester and many classmates, myself not included, had not yet realized how influential the U.S. Supreme Court’s opinions are on society. The Court’s primary (and only) role is to interpret the U.S. Constitution and say what the “law of the land” is. By setting the legal boundaries to which all states must comply, the Court, by way of its opinions, directs, and in certain instances, molds the public’s sense of morality. It can be successfully argued, however, that the process is reverse – that the Court adjudicates according to the changing winds of the public square. This argument is certainly not unfounded.

The California Supreme Court opinion in In Re Marriage Cases, published today, exemplifies one extreme of the judicial interpretation spectrum: Developmentalism, or as conservatives rightly call it, judicial activism. Judicial activists believe in a “living, breathing Constitution,” one that “evolves with the times.” However, there’s a twist here. Did the Court really adjudicate according to California’s changing perception toward same-sex marriage? I think not.

The Court did two things mainly. It created a new constitutional right to same-sex marriage violating the legal notions of stare decisis. Most damagingly, however, it “short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”

The precedent upon which the court in California was bound is unambiguous. According to Glucksberg, the seminal U.S. Supreme Court case dealing with constitutional rights, a two-step analysis must be used to determine whether an asserted right or liberty interest is fundamental. First, the court looks at the “careful description” of the asserted fundamental interest. Then the court examines whether that interest is “deeply rooted” in the American legal tradition. The second prong is admittedly a high standard, arguably insurmountable. If a party asserts a “new” right, then, by definition, it really can’t be deeply rooted in the American legal tradition. It can be reasonably argued that the Court exhibited judicial restraint and purposefully created a high standard to discourage the wanton assertion of new rights.

There is nothing in our Constitution that provides for a right to same-sex marriage. Moreover, applying the second prong of the Glucksberg’s framework, any layperson unschooled in constitutional law knows enough to know that it is heterosexual marriage that is deeply rooted in American tradition, not same-sex marriage. To conclude otherwise would be a foolish delusion. Only one other state, Massachusetts, misguidedly recognizes a fundamental right to same-sex marriage. Applying this logic, a skeptic may argue then that our society would be static. No change, nor progress. Here, my discussion turns to the main thrust of my critique of In Re Marriage Cases.

We live in a republican democracy. According to the Tenth Amendment to the Constitution, the power to create a new fundamental right not provided for in the Constitution lies with the people of each and every state. In 1977, the California state legislature banned same-sex marriage. In 2000, Californians voted to maintain marriage as a civil union between a man and a woman (although, since then, a marriage and a civil union, in terms of legal benefits, have become nearly identical, leaving the issue to a mere semantic difference). Notwithstanding this clear mandate, the California Supreme Court today struck down the state laws and ruled that the right to same-sex marriage was fundamental, ergo, constitutional. The Court exhibited the worst kind of judicial activism. It not only legislated from the bench, but it legislated against the desires of the people.

It is certainly possible that the public’s perception has changed since 2000. It is possible also that if the same referendum was held today, the outcome would be different from that of 2000. But the troubling point is that the California Supreme Court usurped the law-making power of the legislature, and by doing so, violated the separation of powers and ran roughshod over the constitutional right to a republican form of government of 36 million Californians. The question going forward is whether this case makes it up to the U.S. Supreme Court. If it does, how will that Court rule? The clear danger is that it will end up as Roe v. Wade part duex, another monstrosity in the corpus juris.