Souter Confirms Republicans' Worst Fears

[TheStatutoryApe]

Yes of course there is something in the constitution and there is support for the idea! It is called the due process clause. Now, I don't know whether or not Miranda goes too far in an attempt to find a way to insure that due process, but the idea, the intent, is all about fulfilling the right instilled by that clause.

I am unaware of anything in the due process clause which would seem to indicate that one should be briefed on their rights before being interviewed by the police. I am sure that you could make the case that due process should include such protections but you would likely be straying from an originalist interpretation there. Do you have any source to indicate that the founders had conceived of such an idea? I mean it really has nothing to do with the times we live in at all, there are no new developments in technology that allow for this idea. They could easily have made a brief on one's rights a standard part of due process those couple hundred years ago if they had conceived of it as necessary to due process. I am personally unaware if there was any such practice at that time.

Simply because the founders didn't imagine causes for Miranda, or could not imagine a modern hand gun, is completely irrelevant to the concept of original intent.

It's actually quite relevant. In the case of hand guns, not so much. In the case of Miranda, quite definitely. The point of Originalism is that once you start conjecturing you have left solid ground. If you take the basic philosophical intent and then reapply it in a modern context then you are conjecturing and have no solid basis for your opinions. According to originalism one must consider the law only as conceived by the framers of said law. For instance the 15th and 19th amendments are entirely superfluous. Textually speaking there is absolutely no reason for them. But if we interpret the constitution through original intent we know that the framers had no intent of allowing black persons or women to vote. The 14th amendment should settle this as it generically refers to "persons", but apparently it was decided that it did not.

My objection, is to the argument, which I think you attempt in the last couple of posts, that the courts in fact creates law all the time, and that therefore, if they choose to conjure new law based only on their perceived needs of the current society with no root in the constitution, such as, say, a right to housing, then the courts have every right to do so, and, well, in fact they have been doing so without prior complaint. Yes there have been ample complaints, and No the courts have no such right.

I think that you rather misrepresent what I have said.

Sure that's true, since "social equality" relies on the acceptance of fellow citizens, not just government. But "separate but equal" wasn't "legal equality", either, if viewed as individual cases. Each government school considered whites and blacks not equal, even if the quality of each school were equal. Equal quality of schools, even if true, clearly doesn't constitute equal treatment of students by each school.

That was Brown where the previous decision in Plessy was overturned. Plessy had to do with separate rail cars and apparently the rail cars were qualitatively similar.