Miranda Rights Up Next?
Expected reversal of Miranda requires states to step up on policing to replace it.
A lesser-known case appears to likely to upend another constitutional precedent—Miranda rights.
This case, Vega v. Tekoh, asks whether a person’s federal constitutional rights are violated if a police officer fails to inform them of their rights to remain silent, to be represented by an attorney, and to be protected against self-incrimination whenever the person is subjected to a custodial interrogation by the police. These warnings, known as Miranda warnings after the 1966 Supreme Court case that first prescribed them, have become critical protections against coercive police interrogations and are routinely recited by officers whenever they make arrests or question suspects in custody.”
This may come after SCOTUS decided on Wednesday Border Patrol agents who violate the Constitution have total immunity from lawsuits holding them accountable.
And then there is Egbert v, Boule.
Justice Clarence Thomas’s majority opinion in Egbert v. Boule has implications stretching far beyond the border. Egbert guts Bivens v. Six Unknown Named Agents (1971), establishing federal law enforcement officers violating the Constitution may be individually sued. Potentially, they could be required to compensate their victims for their illegal actions.
Slate’s Jurisprudence has Justice Sonia Sotomayor’s dissenting with Justices Stephen Breyer and Elena Kagan joining. Castigating the majority for shredding precedent in its quest to immunize federal officers from civil suits. The justice complaining “a restless and newly constituted court” rewrites law ensuring victims of federal police brutality have no redress.
You do have the right to complain to the federal agency employing the agent. “Don’t hold your breath while waiting on support.”
Sotomayer also drew attention to the reason for this shift. Stating the replacement of Anthony Kennedy and Ruth Bader Ginsburg with Brett Kavanaugh and Amy Coney Barrett moving the court far to the right.
Thomas cites Congress is always better equipped (then the courts) for this task because it can determine a “range of policy considerations.”
In 1971’s Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, involved a claim of excessive force against federal narcotics agents. While “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,” a majority held, it is “well settled” “federal courts may use any available remedy to make good the wrong done.” In other words, a right without a remedy is no right at all, so the courts have an obligation to craft one when Congress fails to do so.
Slate: Courts have insisted the precedent applies only when the facts of a case are nearly identical to Bivens. So, in theory, when federal agents use excessive force, they can still be sued. But if that force takes place in some “new context” with “special factors”— say, some connection to national security—the suit will fail.
Thomas denies the court has any obligation and replaces the Bivens standard. Judges hearing Bivens claims should ask themselves
“whether there is any reason to think that Congress might be better equipped to create a damages remedy.”
Even though Egbert v. Boule is similar to Bivens, Thomas denies any responsibility of the court in deciding. But then, there is no rule in SCOTUS procedure stating they can not decide. Thomas is attempting to legislate from the bench. Furthermore, he place many people in danger with a rogue department,
The link reviewing the case is there if you care to read it.
After that, they may revisit ‘Brown v Board of Education’.
Then ‘The Dred Scott Decision’ (No – that went the right way.)
Instead, go right to the heart of that matter, ‘Which Amendments are actually Unconstitutional?’ Overturn them!
A few years back, I believe, Amy Comey Barrett co-authored an article that did question the Constitutionality of the 3 Post-Civil War Amendments because so many of the states that ratified those Amendments were governed by Reconstruction Governments supported by an occupying Federal Army or were required to ratify the amendments to have their representatives readmitted to Congress.
The idea of an unconstitutional constitutional amendment has been around for over a century—with it being embraced by former Michigan Supreme Court Chief Justice Thomas M. Cooley in 1893 and US law professor Arthur Machen in 1910 (in Machen’s case, in arguing that the Fifteenth Amendment to the United States Constitution might be unconstitutional). This theory is based on the idea that there is a difference between amending a particular constitution (in other words, the constitution-amending power or the secondary constituent power) and revising it to such an extent that it is essentially a new constitution (in other words, the constitution-making power or the primary constituent power)—with proponents of this idea viewing the former as being acceptable while viewing the latter as being unacceptable (even if the existing constitution doesn’t actually explicitly prohibit doing the latter through its amendment process) unless the people actually adopt a new constitution using their constitution-making power. Thomas M. Cooley insisted that amendments “cannot be revolutionary; they must be harmonious with the body of the instrument”. Elaborating on this point, Cooley argued that “an amendment converting a democratic republican government into an aristocracy or a monarchy would not be an amendment, but rather a revolution” that would require the creation and adoption of a new constitution even if the text of the existing constitution didn’t actually prohibit such an amendment. (Wikipedia)
(However, if Amy Comey Barrett is for it, then ipso factor it’s a nutty idea?
Cuz, if it’s ‘in the Constitution’, even as an Amendment, it’s ‘Constitutional’.
As the ‘Prohibition’ Amendments demonstrate, an Amendment can be removed only by another Amendment, if Precedent counts for anything.)
The idea of an unconstitutional constitutional amendment has been around for over a century—with it being embraced by former Michigan Supreme Court Chief Justice Thomas M. Cooley in 1893 and US law professor Arthur Machen in 1910 (in Machen’s case, in arguing that the Fifteenth Amendment to the United States Constitution might be unconstitutional) … (Wikipedia)
(Ignoring the conventional wisdom that ‘something is Constitutional if it’s in the Constitution’, even if it’s an Amendment. Unless there’s subsequent Amendment to counteract it. See ‘Prohibition’.)