Sunday, March 13, 2011
On this day in 1963, Ernesto Miranda was arrested in Phoenix, but gets off on a penumbral emanation
On this day in 1963, Ernesto Miranda was arrested in Phoenix, but gets off on a penumbral emanation. As Ed Whelan notes at NRO, the initial Miranda decision was 5-4, over a vigorous dissent by Justice Harlan, who pointed out that the warnings are not mandated by the Constitution's text. When the Court came to re-examine Miranda in the Dickerson case, the majority conceded that the use at trial of a voluntary confession, in the absence of Miranda warnings, does not violate the Constitution, but supported the warnings as a "prophylactic" device. Scalia rightly blasted the majority for assuming an "immense and frightening anti-democratic power" -- not merely to enforce the Constitution, but to impose prophylactic policies that can void the laws of elected state and federal legislators.