The Warren Court had made a habit… out of rewriting Constitutional law. Landmark civil rights cases such as Baker vs. Carr and Brown v. Board of Education drastically altered the segregated South, while Engel vs. Vitale and Griswold vs. Connecticut would fuel the culture wars for decades to come. It was the criminal procedure mandates handed down by Earl Warren that have drawn his court’s legacy into question. Brady vs. Maryland, Gideon vs. Wainwright, and Escobedo vs. Illinois radically altered due process and police procedure, some argue to the detriment of law enforcement. No other case symbolizes the Warren Court’s activism better than Miranda vs. Arizona, handed down on June 13, 1966.
Legislating from the bench
Few cases are as misunderstood…and detested as the ‘Miranda’ ruling. The basic holding was that due process begins when a suspect is taken into custody, not when they enter legal proceedings. Warren was not satisfied with a simple procedural question, taking the decision to the Constitutional level-
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
It was now the responsibility of the state to inform the citizens of their 5th and 6th amendment protections
“The Court is not a general haven for reform movements”.[
The Warren Court was deeply divided in delivering a 5-4 decision. Justice John Marshall Harlan did not approve of Warren’s reach, “nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities
….This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”
Civil libertarians argue the technical risks of freeing criminals …is worth the protections the opinions offer, but Justice Byron White could not concur, “I have no desire whatsoever to share the responsibility for any such impact on the present criminal process. In some unknown number of cases, the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity.”
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Recent discussion about the Supreme Court prompted… some thoughts about the greatest men to sit on our nation’s highest bench. Four faces that best exemplify jurisprudence in American history. Here goes….
John Marshall: Chief Justice 1801-1835– The George Washington of justices, the first and possibly the greatest. Marshall established all future Court behavior in Marbury v. Madison – later he helped define Federalism with the McCulloch v. Maryland decision.
Man of action
Oliver Wendell Holmes Jr.: Associate Justice 1902-1932– A man of action on the battlefield (wounded twice in the Civil War) and in the courtroom. Holmes is one of the most cited Justices and helped establish that free speech must be responsible speech in Schenck v. United States.
The Great Dissent
John Marshall Harlan: Associate Justice 1877-1911– A former slave owner who became the voice of reason on a Court determined to protect segregation. Harlan’s lone dissent in Plessy v. Ferguson became the foundation of all future Civil Rights cases.
The Modern Era
Earl Warren: Chief Justice 1953-1969– Much ink has been spilled over Warren’s legacy, but it is an essential one. Warren’s decisions ended public school segregation, reaffirmed “one man-one vote,” and expanded due-process protections. He is largely responsible for the role the Court plays in modern American politics.
Joe Ellis explained the absence of serious Madison biographies… by proclaiming “he’s boring as hell” and that “only lawyers like him.” As previously stated, Ellis’s recent comments on the Framers and Original Intent cast doubt on the rigor of his scholarship- and these nuggets of wisdom only enhance the evidence of his misguided revisionism.
Never far apart
The revision Ellis is peddling holds that Madison and other Framers… rejected the doctrine of Original Intent on its face. The only empirical evidence supporting this notion is Madison’s oft quoted explanation for not publishing his notes on the Constitutional Convention. Once established, the government continued to disappoint Madison, driving him closer to his friend Jefferson. During his presidency, Madison undoubtedly supported Original Intent as he battled John Marshall and Congress for the soul of the Constitution. He feared the elasticity in the Constitution was being abused by ambitious demagogues- Madison wanted the power of government restrained- his original intent.
What have your wrought, Joe?
Liberals in America have never accepted our history… of owning firearms. For decades they have waged legislative battles to restrict gun ownership and courtroom battles to redefine long-held beliefs about the Second Amendment. The Supreme Court finally settled all legal questions with its landmark DC v. Heller decision in 2008. The case proved how far Liberal politicians would go to restrict gun rights (handguns were banned even inside homes) and dubious interpretations of the Second Amendment were argued before the highest court with full expectation of vindication. The majority of the Court ruled that ownership of a gun is not connected to membership in a militia. The idea of limits placed upon the operative clause of the amendment is a direct violation of the rights of individuals. The Court wisely disregarded misguided attempts at original intent of the framers by noting that the roots of the Second Amendment could be found in the Anti-Federalist movement.
When you cannot prove your point, make stuff up….
Progressive historians often agree with… the now discredited idea of the collective right interpretation. During the heated gun control debate following the Columbine school shootings, Liberals redoubled their efforts, including historical analysis. Emory university professor Michael Bellesiles published the notorious Arming America: The Origins of a National Gun Culture. His thesis contended that America’s gun culture developed after WW2, prior to which there was no consistent history of gun ownership in America. Infamy was achieved by the unprecedented level of fraudulent research Bellesiles cited to arrive at his conclusions. He fabricated evidence, distorted statistics, and misquoted historical figures to prove the highly contentious assertion that gun ownership was never part of individual rights in American history.
There is a battle being waged…over our history. There are historians who reject the tales of Minutemen, Elmer Ellsworth, and citizen soldiers. They are willing to publish fraudulent history to try to win a public policy debate. The Courts, public opinion, history, and the Constitution all side with American history that includes individual gun ownership rights.
Can such a man exist in Professor Bellesile’s world? Elmer Ellsworth, drill master
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Thomas Jefferson battled with his cousin, John Marshall… over the role of the federal judiciary, but also over the direction of our young republic. Jefferson long feared an unchecked judicial branch during the ratification crisis- Marshall’s decision in Marbury v. Madison only deepened his distrust.
Keep legislating to a minimum
“The Court determined at once, that being an original process, they had no cognizance of it; and therefore the question before them was ended. But the Chief Justice went on to lay down what the law would be, had they jurisdiction in the case, to wit: that they should command delivery . . . . Besides the impropriety of this gratuitous interference, could anything exceed the perversion of law?
Yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its being an obiter dissertation of the Chief Justice. like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consoli¬dated into one.” Jefferson 1804
Keeping it in the family
“For Mr. Jefferson’s opinion as respects this department, it is not difficult to assign the cause. He is among the most ambitious, and I suspect among the most unforgiving of men. His great power is over the mass of people, and this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power, and he is unfriendly to the source from which it flows. He looks of course with ill will at an independent judiciary.” Marshall 1807
Olive Wendell Holmes Jr. was a soldier... Many present day Conservatives strongly dislike him. They accuse him of being a eugenicist (tantamount to being a communist these days,) and his opinion on national security makes their blood boil. If ever there were sunshine soldiers and summer patriots, they are in the modern Conservative movement. Oliver Wendell Holmes was a man of action. His career as a jurist wasn’t forged in smoke-filled offices by arm-chair warriors. Holmes answered the call and put on a uniform.
Controversy equalizes fools and wise men – and the fools know it.
As a member of the famous ‘Harvard Regiment’… Holmes saw his first action at Ball’s Bluff, Virginia in October of 1861. He was grievously wounded, shot through the lung while leading his men into action. Holmes returned to the ranks only to see his next action on September 17th, 1862, America’s bloodiest day. Shot through the neck and left for dead, he survived a second serious wound to return to the ranks. He would be wounded a third time in his service, rising to the rank of Lt. Colonel of volunteers.
“Comrades, some of the associations of this day are not only triumphant but joyful. Not all of those with whom we once stood shoulder to shoulder—not all of those whom we once loved and revered—are gone. On this day we still meet our companions in the freezing winter bivouacs and in those dreadful summer marches where every faculty of the soul seemed to depart one after another, leaving only a dumb animal power to set the teeth and to persist—a blind belief that somewhere and at last there was rest and water. On this day, at least, we still meet and rejoice in the closest tie which is possible between men—a tie which suffering has made indissoluble for better, for worse….But, nevertheless, the generation that carried on the war has been set apart by its experience. Through our great good fortune, in our youth our hearts were touched with fire.”
A man of action
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