Just as a clarification, the accused may make self incriminating statements if they are made knowingly, willingly and voulentarily An example of this in practice may be found here.
In this case the accused was presented to the court in prison garb, which would tend to indicate guilt. The reason for this safeguard is to not only protect against coerced confessions, but to also ensure that the person be aware of his ability to say nothing. Also, the use of the 5th Amendment applies to both inculpable and exculpable statements. Therefore, in a court of law, saying nothing cannot be used against you.
Does anyone else get a chuckle out of people from the United States who have a legal system based on a constitution that prevents smooth and logical evolution of the law i.e. situation with gun laws? 
Why you couldn’t have just declared yourselves independent and copied our system (which has worked very well for the last thousand years) and institute some new laws saying “Limeys keep out” is beyond me. 
The case you quote has nothing to do with the Fifth Amendment. Zero. Zip. Zilch.
What good is winning a war then doing things exactly the way our enemy had us doing them in the first place? Our system actually works quite well, including the 5th.
To be fair, a good number of Americans believe that firearms are a matter of fundamental rights. While I don’t agree with them, that’s just as good an opinion as one that would equate “smooth and logical evolution” with instituting firearms restrictions.
Even without the Second Amendment, how do you know for sure that firearms restrictions would still be unpopular enough to allow for “smooth and logical evolution”?
Granted, although the factors that started the war of independence (i.e. “no taxation without representation”) did not necessitate the creation of an entirely new legal system. In the period before the war the colonies were pushing for the right to elect MPs to sit in Parliament who could represent their interests. Secession from the Kingdom wasn’t on the agenda until it became obvious that armed conflict would be necessary to achieve the level of autonomy that the colonies wanted.
By the time the war was over the agenda had changed and a new legal system was only part of the changes that followed the declaration of independence. The previous “unwritten” legal system could have been kept, it just would have required the changing of the various authorities who applied and wrote the law.
I accept that I’m nitpicking, and that your system does indeed work well enough for it’s purposes, I guesss I’m just a bigger advocate of the unwritten constitutional system because I live in one.
I’m not hugely knowledgable in the field of American law (as the fact that I started this thread will attest to) but from what I do know the process of changing the Constitution to alter the law in the US is far more difficult than passing an Act of Parliament in the UK that does the same thing. If I’m mistaken then please say.
In the eighteenth century many defendants would have been poorly educated and/or illiterate and would have wandered through the legal process in a daze, quite unable to understand what was happening to them.
The right to silence prevents them talking themselves on to the scaffold. In English law at that time defendants were not allowed to testify even if they wanted to, for similar reasons.
While a defendant cannot be required to answer questions that require him to incriminate himself of the charge, or of some lesser crime, the jury is entitled to use their common sense in asking themselves why he would not answer.
In American law, the jury is not entitled to draw any inference from the defendant’s post-arrest silence.
You’re completely correct in this, and that’s exactly the point. Americans regard the Constitution with an almost superstitious reverence, while being willing to support amendments to it that foster their ideas of good government, doing justice, and protecting rights (which may vary from person to person).
And one of the main reasons why we did what we did was what Lord North and his royal puppetmaster did with respect to Britain’s American subjects’ rights, all completely legally.
Can you imagine some of President Bush’s supporters armed with the powers Tony Blair has to force legislation through Parliament by majority vote. The protections we are guaranteed by the Constitution wouldn’t last as long as it takes me to type this post.
Note Captain Amazing’s and Giles’s posts above. Those rights are guaranteed by the courts and common law, but one act of Parliament, passed by a bare majority, would wipe them out. We wanted to secure our rights as against a power-greedy national government, and to ensure that only those things that were permitted to be legislated on which had the support of a majority of the people nationwide would be in fact enacted. Hence the President and his Cabinet are not part of Congress, may not rule by fiat except in accordance with law, and the whole shebang is subject to review by the courts for constitutionality.
Finally, it’s important to note that the Fifth Amendment is not merely protection against compelled self-incrimination, but guarantees a number of other rights as well.
- Grand jury indictment required for non-military felonies during wartime.
- No double jeopardy
- No compelled self-incrimination in criminal cases.
- Due process required for any fine or imprisonment
- Eminent domain must be justly compensated; no “takings”.
We here take a flatly opposite view. No Parliament can or should bind its successors to or from a particular course of action.
Constitutions are not ordained of God (even if you believe He exists) but are mere words devised by men and, we feel, what was suitable for a horse-and-buggy society can and should be revised readily to meet modern conditions and requirements.
Ah, but the beauty of the U.S. constitution is that it was crafted, for the most part, so as not to have been relevant only to the time of its creation. The great majority of it works and applies as well now as it did then, and appears likely to do so in the future.
This is going a bit far from the OP, but still …
The US Constitution was not handed down from God, indeed, but was an agreement between sovereign states that had recently seceded together from British rule. So it has a lot in it to protect the rights of minorities – those minorities not only being minorities among the contizens, but also minorities among the states making up the union.
In addition, the US Constition is seen as deriving its authority from the people, while the British system ultiomately derives its authority from the monarch – admittedly with that authority historically diminished by the powers of the nobility (as in 1215 with Magna Carta) and by the powers of the commons not to be taxed without their consent through Parliament.
So it’s partly the difference between a federation and a unitary system, and partly the difference between a republic and a monarchy.
Our legislative body, Congress, cannot “bind its successors to or from a particular course of action.” However, American government is a government of limited powers and part of that limitation is to remove from the sphere of governmental control forever certain things.
In other words, the American system is based on the belief that there are certain fundamental, inalienable rights, including freedom of speech, the press, religion, assembly, etc., that no government should be allowed to curtail, no matter the “modern conditions and requirements.”
It’s one thing to argue that it’s a mistake to include the right to bear arms among those fundamental rights, and that’s my position.
It’s quite another thing to argue, as you seem to be doing, that the whole concept is flawed. What you seem to be saying – correct me if I’m wrong – is that there should be no rights considered fundamental, permanently outside of the power of government to curtail.
And partly a difference resulting from the concept that political minorities should have some protection from the “tyranny of the majority.”
Ah, but your so-fine constitution disintegrated less than a century later in bloody civil war, and issue was decided by force or arms and not reasoned argument or legal precendant.
The difficulty I have with ‘inalienable’ rights is - who ordains what they are and are not in the first instance? “We hold these truths to be self-evident” amounts to ‘because we say so’?
Written constitutions are in themselves of no value without vigorous institutions. The Soviet Union had one. Zimbabwe has one, yet the government routinly ignores the decisions of the Supreme Court and the rule of law has practically ceased to exist
In this case, it was the Constitutional Congress. How are basic rights defined in India or in the European Union?
“We hold these truths to be self-evident” is not part of the U.S. Constitution. It’s from the Declaration of Independence, which has no legal force.
Do written constitutions along with vigorous institutions have no value? What about vigorous individuals? What about a federal government with divided powers?
We might very well be approaching a constitutional crisis at this moment, with the Bush administration claiming unprecedented unreviewable powers for the executive branch. Would the absence of a written constitution have made this situation any less likely or dangerous?
Britain has had several civil wars, not always called that, from the War of the Roses through to the successful Irish rebellion of 1919-1921, so lack of a written constition guarantees nothing very much either.
However, I will agree that more important than a written or unwritten constitution is support of human rights through “vigorous institutions”.
This is incorrect. Have you read The Declaration of Independence?
The King and/or parliament seemed to have unrestricted power over us & our choice to path our own destiny. A new legal system which created limited government chained by a Constitution was certainly needed.
Obviously, that’s true, and that’s a weakness of natural law theory/liberalism. It’s a matter of faith, like all philosophies of government.
Remember, too, the rights in the bill of rights weren’t invented out of whole cloth…they’re a codification of the rights established by English common law. The right to free speech, the right to feedom of conscience, the right to trial by jury, the protection against self incrimination, the right to own weapons, all this came out of the English Civil War and the Glorious Revolution.