See this is where it gets complicated. The legislature did pass a law–many in fact, but specifically in this case the Fifth Amendment to the U.S. Constitution that protects against self incrimination. However it needs to be understood quite clearly, our constitution is not the only descriptor of individual rights. Our constitution and our system of government, clearly was established with us inheriting all rights and privileges traditionally held by Englishmen. One of those rights is derived from the Latin maxim " nemo tenetur seipsum accusare" or "no man is bound to accuse himself. This concept in English law dates back to the time of Henry II, who was King of England from 1150-1189. So this right and privilege is essentially “ancient”, and our constitution specifically enshrines and protects our ancient rights and liberties, it does not constrain them unless explicitly stated.
From that source, it is not necessarily a crazy step to say that Miranda is simply required due to the extremely ancient right involved. However I do think intelligent people can disagree, I think it’s a complicated issue. But I don’t believe at all that the Warren Court just “made law”, they had a fairly aggressive interpretation, but I do not think they made law. FWIW I think the busing rulings by the courts are more obvious instances of judicial legislating and even judicial executing laws.
Again, ISTM that Court decisions in general are all about saying what things must happen, or must not happen, that aren’t explicitly spelled out in the Constitution. Is it also “judicial activism” to say that a storekeeper can’t refuse to serve you as a customer because of your race? Mandatory customer service is also “just not there” in the wording of the Constitution.
Right, but judges who follow the law, look at the law and don’t just make things up like the Miranda Court did.
If a court was presented with a question of whether I could refuse service to a customer based on race, it would look to the Civil Rights Act of 1964 and easily answer that question with a “no.” It wouldn’t be based on whether a judge personally believed I should or should not serve a customer based on race: it is based on law.
But courts can and do find laws unconstitutional: their interpretative and evaluative function is quite clearly not limited just to decreeing what existing laws already say.
So is any judicial decision that, for instance, finds an existing law unconstitutional automatically “judicial activism”? Where is the line between what’s considered “judicial activism” and what isn’t?
Perhaps in an act of contrarianism I think I can disagree with both of you, at least in the theoretical sense. I think that it’s worth noting Miranda was a 5-4 decision, with 3 of the judges joining in a fairly strenuous dissent. The 4th dissent partially affirmed. I think it would require a much more in depth treatment, but Harlan and White’s dissent goes into great detail about how the specific procedural scheme setup by Warren was contrary to English common law, to established jurisprudence on the self incrimination clause, and a number of other laws and Federal precedents up to that point. Both Warren’s opinion in Miranda, and the dissent, are fairly complex and convoluted, both much more so than most Supreme Court opinions I have read (and I’ve read a decent number of them for a layman), I also think the style of writing is a tad dated compared to more modern decisions in the last 30 years that adds a bit to the trouble with digging through it all. But the tldr is–some damn good and knowledgeable judges raised a fairly competent dissent. I don’t know which side really got the right of it, but 5-4 is close, and the judges on the 4 side of that were anything but partisan hacks.
Where I can disagree with @UltraVires is the Fifth Amendment itself only says you cannot be compelled to be a witness against yourself, it says nothing about there being any problem with you being required to provide incriminating statements about yourself in a non-courtroom setting. However when we go back to English common law, the 800 year rights and privileges stuff, without explicitly saying it I think it fairly obvious that we have a right to not be compelled to do that either, a closely associated right to the one enumerated in the constitution. In short, the constitution doesn’t say a constable can’t beat the tar out of you to make you sign a confession, but English common law had established that centuries before, and the Fifth Amendment clearly was intended to encapsulate that right, and further, we are assumed to maintain our rights and privileges we brought with us into the constitution, whether enumerated or not, unless something says specifically otherwise within its text.
A judge should put aside his or her feelings about whether the law is a good idea or not. Then look at the text, the history, the past precedent, and how it was handed down from English common law. Then make the best decision.
When cases like Miranda are just based on absolutely nothing but a judge’s feeling that this “should” be what happens, it is judicial activism.
I’m a little confused about this example. To my knowledge the courts never established that businesses had to serve customers regardless of race, that was literally an actual Federal law passed by Congress, the Civil Rights Act, which prohibited discrimination in public accommodations. I’m not sure precisely what point you were trying to make, but I think things like this confuse it a bit, because this was something that from history we know didn’t happen through judicial fiat but through laws being written and passed.
I don’t disagree. But where in history or text does the Court come up with the idea that a person must be informed of that right? They didn’t do it for the Fourth Amendment. The police do not have to tell you that you can refuse a search of your car or home; they can just ask and hope you agree.
Oh good, that gives us a nice objective metric for identifying judicial activism. Clearly no reasonable people are ever going to disagree about whether a judge’s opinion is motivated by valid interpretation and precedent or by mere “feelings”.
So let’s take a specific example. The Seventh Amendment to the Constitution (right to trial by jury) says this:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
How does a judge determine what the common law is, when it is not written in plain text by a legislature?
It sort of does. That’s why judges write opinions stating their rationale for deciding the way they do. When you read opinions that say “we feel” and other such language without support, that pretty clearly shows judicial activism.
Sorry, I didn’t mean to imply that they did. My attempted point was that if a legislature exercised what oldoaktree seems to consider its legitimate function to decree that a business does have an intrinsic right to racially discriminate against customers, the Court could and would rule that law invalid.
Really? IANAL but ISTM that you can’t throw a brick at a book of judicial rulings without hitting language along the lines of “this Court feels that” and similar wording.
It also STM that if it were really that straightforward to determine objectively what “judicial activism” is, you and Martin_Hyde wouldn’t be disagreeing about whether the Miranda ruling obviously or debatably qualifies as such.
First, a legislature doesn’t decree anything. They are the people’s representatives in a democratic society.
Supposing a hypothetical law that a legislature passed that said that businesses could discriminate on race, first, that would be odd law because the default rule prior to the 1964 Civil Rights Act was that businesses could indeed do that. But suppose I am a judge and someone challenges the constitutionality of that law. I first put my feelings aside about how odious it would be to refuse service to someone based on race.
Then, I note that businesses are private property, and not subject to the 14th Amendment. See Civil Rights Cases (1875). Although the common law required certain innkeepers to take all comers, the legislature is free to modify the common law by statute. So, unless the Petitioner can point to some other historical work, I am inclined to rule that the law is valid, despite my personal objection to it.
A judicial activist would say that such a law is wrong and strike it down. See the difference?
Of course. What judicial activism is is subject to debate like most things. I’m talking about the “we feel” language with little support, like Roe and Miranda. Even liberal scholars criticize those cases for outcome based approaches.
The right to contract is itself reserved to the people under Amendment X. But the States are expressley prohibited from impairing the obligation of contracts.
Article I, Section 10
No State shall […] pass any […] Law impairing the Obligation of Contracts