Tom Devaney Scalia & Miranda: The Politics of Characterization
The Supreme Court's recent ruling to uphold Miranda as the law of the land sounded alarms among talk radio enthusiasts and commentators like Charles Krauthammer who gave the highest grades to Justice Antonin Scalia's dissenting opinion in his nationally syndicated column (Philadelphia Inquirer, July 5, 2000). Miranda's guidelines, made famous by TV cop shows and movies everywhere, include informing arrested persons prior to questioning that they have the right to remain silent, that anything they say may be used against them as evidence, and that they have the right to the counsel of an attorney.
The decision to preserve (and nothing to widen) an already scaled-back version of Miranda goes against an over three-decade trend to limit the scope of the ruling. Every decision since the landmark 34 year-old ruling has served to weaken its safeguards. The court stated that "Congress cannot overturn the Miranda warnings that police must give suspects because the advisories are rooted in the Constitution." Still, for some conservatives Miranda is a decision both logically flawed and bone-headed—that no matter how weak—will always go too far in protecting the rights of individuals at the expense of law-enforcement agencies. Miranda has also been a useful stick to beat opponents of a surprising variety of political stripes, and Scalia, with Krauthammer in tow, get their licks in.
While sober discussion is often rare in our current politics it is all but absent when dealing with a passion-driven subject like Miranda. Add to this the fact that Scalia, though highly respected by fans and foes alike, is one of our most able practitioners of the politics of characterization, which is the prevailing mode of our quick-take political discourse. Krauthammer's comments about the ruling (though conceding merit in the last sentence of his report) more faithfully echoes Scalia's scolding and belittling stance against those with whom he disagrees. Under Scalia's famously forceful sway, Krauthammer lambasted the 7 Justices who upheld a frail Miranda, charging them with "intellectual laziness" for failing to see Scalia's logic.
While even Scalia's critics readily acknowledge his acumen, we hear less about of his penchant (win or lose) to bury opponents by making them not only seem ridiculous, absurd, and wrong, but also in last weeks decision—lazy. Not surprisingly, Scalia arrives at such blasting conclusions because he counter-poses a number of conflicting characterizations, which seemingly justifies his bellicose behavior.
Krauthammer, writing as Scalia's star student, says that the "Court cobbled together an opinion that simply says: Well, we made the rule many years ago, it seems to work, and we are not about to overturn precedent." The phrase "cobbled together," is a serviceable put-down suggesting the decision was thoughtlessly and quickly thrown together. The second half of the characterization reflects another line of attack. The fact that Miranda has not induced a miscarriage of justice, and in fact has stood as a useful and minimal check on our public servants is the sitting on their hands, no-knowing, letting-well-enough-alone part of his argument.
But it is not well enough to leave this cheap characterization alone when it happens to be a sturdy branch of law known as sare decisis—a branch which has not only withstood the test of time, but whose very purpose concerns the enduring expectations we have of the law. The Latin name for sare decisis is "let the decision stand," and has traditionally been a hallmark of conservative thinking and lawmaking-its charge, to maintain and preserve the standard of law.
It is ironic, and slightly dishonest, to watch one of our more respected lights like Scalia accuse and characterize the 7 Justices, with whom he disagrees, as being lazy and scold their lack of intellectual aplomb when invoking a tried and true principle of law—one whom Scalia himself heavily relies.
Miranda, Scalia forcefully claims, does not only hold-up to the rigor of his logic, but logic itself. This is one reason why he so confidently castigates his colleges. And true enough, reading Scalia's decision, he seems to have cornered a rational defect in Miranda. But the reach of reason in Miranda is not what Scalia claims, but in fact the ruling's hidden strength. Not only does the ruling have rigor, but is worthy of what is most valuable, subtle (translation: not on the radar in the characterization wars) and enduring in the work of James Madison, the principle architect of the Constitution.
Scalia argues that Miranda is both "arbitrary" and fails to face up to reasoned scrutiny. Miranda is far from arbitrary, which its over three decade tenure speaks to, and in fact, is actually a common sense response countering and addressing some of the reaches of reason.
Despite conventional wisdom, for the Framers, reason, though held in high regard, was neither absolute or infallible. In fact for Madison, experience trumped reason. It is not readily acknowledged that Miranda acknowledges and incorporates the imperfect features existing in everyday men and women into its legal mechanics. Madison writes, "Enlightened statesmen will not always be at the helm." That is, he says, reason will not always prevail. To restate Madison, we can say that enlightened police officers will not always be our officer. The enormous pressure and demand to bring criminals to justice is something that everyone can understand.
However, in the sweep of the moment measures need to be in place to assure that we get true justice rather than just swift justice. Far from tying the hands of police, and coddling criminals, Miranda has maintained a minimal but necessary partition of power between our public servants and the public they serve.
Krauthammer writes that, "In the best of all possible worlds, the court would overturn Miranda and Congress would reinstate it as a statue." But as Madison reminds us, "If men were angels, no government would be necessary." People are not angels and we know too well that this is not the best possible of worlds. Madison pinpoints the heart of the matter when he writes, "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." First and foremost Madison properly asserts that we must to do everything in our power to enable and arm the government to control the governed, but hastens that the next step has to be-the government controlling itself.Madison's seemingly untidy, but actually useful answer is to leave no power completely unchecked. This kind of patient and logical reasoning is absent in the high-pitched theater of characterized politics. Scalia's blasting and constant rhetorical scolding serves to do little more than trample the grass in the dusty field of our political discourse. Again Scalia sounds off, "The issue is whether, as mutated and modified, they [the court's rulings] must make sense." "The requirement that they do so," Scalia continues, "is the only thing that prevents this court form being some sort of nine-headed Caesar, giving thumbs-up, or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."
This passage is a window to understanding why Scalia is so loved by supporters and so feared by opponents. In a blast of characterized ferocity Scalia's arguments hit from several directions at once, simultaneously imploding and exploding. Once the court stops making sense, which Scalia charges it is doing with Miranda, then it is then technically cut loose to roam sovereign as a "nine-headed Caesar," arbitrarily asserting its prerogative yea or nay to suit its fancy. The earlier charge of laziness for failing to act, along with the ruling being quickly "cobbled together," is redoubled here into a characterization that the Justices are acting recklessly, while they are actually upholding a decision that, in its essential form, has withstood the test of time.
Scalia is the smartest kid in school and the class bully rolled into one; he strikes the troublesome combination of playing dirty and seemingly knowing more than everyone else; he is Groucho Marx without the laughs; Scalia's rule is: No mercy, no exceptions, no leeway. However, returning to Miranda, (and one of its foremost features of the politics of characterization is that it so effectively distracts one from the subject at hand) Madison ever on-task, affirms that "the constant aim" needs to be"that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights." Miranda is such a sentinel for our sentinels. Scalia's powerhouse brand of characterization did not win out this time, but we must take care to guard (from all sides and parties) against this pervasive riptide of our political discourse.
© by Tom Devaney
