The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This is the Ninth Amendment to the United States Constitution and unfortunately, it doesn’t do much work. Anyone who’s philosophically pro-liberty, should be quite bothered by this.
We talk about freedom a lot in the United States as the core principle of our nation. But legally, it’s hard to say that’s who we really are. Think about these two competing ideologies.
In a non-free country, you don’t have rights unless the government gives them to you. You can’t do whatever you want, unless the government says it’s OK.
Conversely, in a free country, everything should be considered your right to do, unless the people’s government has a “compelling interest” in making it illegal. We’ll talk about compelling interest in a bit, because it’s kind of a “thing.”
The duty of government I think we most all agree on, no matter where you land on the political spectrum, is that your exercise of freedom should end when that exercise harms another. In that case, the government could, and should, restrict that.
This principle is the essence of the Ninth amendment. Just because we didn’t name other rights in the Constitution, doesn’t mean you don’t have them, and they are equally worthy of Constitutional protections.
There was intense debate when our Constitution was framed as to whether the Bill of Rights should be included, for this very reason. The fear was that naming specific rights might imply that anything not listed wasn’t protected—that the list would be treated as exhaustive. The Ninth Amendment was Madison’s direct response to that concern.
That said, did you know the Ninth is rarely cited in court nor used successfully to protect the people from government oppression as it was intended? Case Law is littered with times that the First Amendment was used to protect people’s rights, so why not the Ninth? The courts have largely abandoned it.
They put it in the Constitution for a reason—it’s not just there to increase word count. It should do some work, yet it just doesn’t.
In our country, the government can and does restrict your freedoms quite often. Unless you can show that your constitutionally-recognized rights were violated by, and you were harmed by, said law, you likely won’t have standing to go to court and challenge it.
Since I mentioned it, it’s worth noting what “standing” is.
Standing just means you essentially have a right to go to court. This matters, because if you weren’t harmed, and just don’t like a law, the court considers this a political issue you should take up with your congressperson.
The courts don’t want someone to be mad Congress passed a law, and try to get the courts to fix it, like when you’re mad at your mom when she says “no,” so you go ask your dad.
Therefore, the Court separates political issues which congress handles, from justiciable issues, which they handle. The difference is generally that if you just don’t like a law, take it up with your congressperson. But if you were harmed by a law and you can show as much, take that to court.
I know we mentioned them earlier, but I should define the term “enumerated rights.” It just means those that are actually laid out in the Constitution by name in the Bill of Rights.
The United States Constitution
This system we have, is arguably not freedom, because it operates as if you have no rights, unless the government gives them to you. That is in direct opposition to principles in the Ninth Amendment and the Constitution itself.
Government overreach wasn’t always as prevalent as it is today. Between 1897 and 1937, an era often called the “Lochner Era.”
Lochner v. New York (1905) was a case where New York passed the Bakeshop Act, which restricted bakers’ hours. Bakeshops were hot places—air conditioning was invented just three years earlier, and was not something you’d find in a typical bakery at the time. So New York was essentially trying to protect workers from hazards like heat stroke or respiratory illness.
The Court struck the Bakeshop Act down as a 14th Amendment due process violation. They argued that it violated the rights of employees and employers to voluntarily enter into a contract they both agreed to.
In the Lochner Era, the courts struck down several laws as 14th Amendment’s due process violations, but it was very Ninth Amendment adjacent, in that it suggested restricting people’s freedom, mostly economic freedom, was a violation of their rights in general, even if those rights weren’t enumerated. So what happened in 1937?
One tyrannical son-of-a-bitch named Franklin Delano Roosevelt (FDR) was president, and he was trying to reshape America with his “New Deal.” It wasn’t just big government, it was massive government. At the time, the court was largely Republican appointees who held laissez-faire capitalism quite near and dear to their hearts, and were striking down laws like Nolan Ryan in his heyday.
Roosevelt, getting sick of being thwarted left and right by the Supreme Court, pitched the Judicial Procedures Reform Bill of 1937, which would pack the Court with additional justices until he had a majority—then use that majority to dismantle the vast case law of his opponents and replace it with New-Deal-friendly precedent.
Franklin Delano Roosevelt – President of the United States Served: 1933-1945 Lived: 1882-1945
Sound familiar? Alexandria Ocasio-Cortez proposed packing the Court when Biden was president to undo the then Republican-appointee majority’s case law, also.
Republicans have their own bag of court manipulation tricks, such as sitting on nominee Merrick Garland, when many argue he rightfully should have been approved. Parties gonna party—neither is innocent.
Many believe that in order to prevent this, Justice Owen Roberts unexpectedly gave FDR a win. Roberts had previously sided with the conservative bloc striking down New Deal legislation, so his vote to uphold minimum wage laws in West Coast Hotel Company v. Parrish came as a surprise.
With the Court appearing to somewhat bend to FDR’s will now, he stopped his efforts to pack the Court. To be fair, such a bill might have failed, but the Court didn’t seem to want to find out.
With all that in mind, let’s talk about scrutiny.
When government restricts your constitutional rights, the courts have developed tests to determine whether that restriction is justified. This isn’t statutory law passed by congress. It’s case law that has formed over many cases. So you won’t find this all wrapped up neatly in one previous case. There are currently three of them.
Rational Basis
Intermediate Scrutiny
Strict Scrutiny
Understand that this framework only applies when constitutional rights are at stake. If a case is purely about what a law means or how it should be applied—with no constitutional rights implicated—these tests don’t enter the picture.
The default is Rational Basis. It’s akin to a speed bump. Pretty much everyone can drive over it, but if someone had a broken-down clunker, they might not make it.
This case was about a company that made “filled milk” which is milk with added ingredients, such as fat or oil, other than milk fat. Carolene Products used vegetable oil in their milk, and then sold off the milk fat for use in making butter, and more valuable products.
In response to this practice, Congress passed the Filled Milk Act of 1923, banning interstate shipment of such milk, arguing it was harmful to public health.
It was nonsense. Filled milk was nutritionally comparable to whole milk; the dairy industry simply didn’t want the competition. Carolene Products was selling the valuable milkfat separately for use in butter, then replacing it with cheaper vegetable oil to make the de-fatted milk palatable—and selling the result at near whole-milk prices.
Rational Basis has a test with two prongs.
Does the government have a legitimate interest in passing the law?
Is the law rationally related to achieving that interest?
That’s it. Pretty easy.
Carolene Products challenged the law, saying it violated their interstate commerce rights, which it arguably did, but the Court decided that the health interests were legitimate, and the law was rationally related to protecting them, allowing the law to stand.
With Rational Basis, the government generally doesn’t even have to name its interest in passing such a law; the courts have often just agreed that if they can conceive of a legitimate interest, that will suffice. The second part is just, “is the law rationally related”—not a large hurdle to jump.
Very few laws have failed Rational Basis, but giving a real-world example helps burn it into your brain, so I’ll give you one.
Obergefell v. Hodges, from 2015, was the landmark case legalizing same-sex marriage. What many don’t know, is two years prior, there was a similar case challenging the Defense of Marriage Act (DOMA) called United States v. Windsor.
Windsor is somewhat doctrinally contested—Justice Kennedy, who wrote the majority opinion, never explicitly named the standard of review he was applying. But the Court’s reasoning essentially functioned as Rational Basis, and it’s widely discussed in that context.
Anthony Kennedy – Associate Justice: Supreme Court of the United States Served: 1988-2018
DOMA, as you recall, was a federal statute that defined marriage as a legal union between one man and one woman.
When one partner in a married lesbian couple died, her surviving spouse (Edie Windsor) was forced to pay estate tax because DOMA didn’t recognize her as a legal spouse.
So it was ruled to be a violation of Windsor’s right to equal protection under the law, and the Court’s reasoning, while never explicitly naming a standard of review, essentially applied Rational Basis analysis.
It was a speed bump the Government couldn’t drive over. The Court saw no legitimate reason for government to deny Windsor her rights under equal protection, simply to “defend marriage.”
Edie Windsor
Generally speaking, the harm principle—the idea that your freedom ends where another’s begins — is the philosophical standard I’d argue government should meet. Rational Basis is the legal standard courts actually apply, and it’s considerably more permissive than the harm principle. But even rational basis has its limits, as Windsor shows.
That said, if your law is just discriminating against a certain group without protecting another, courts have held that’s not a legitimate government interest—and therefore such laws fail even the low bar of Rational Basis.
I understand that DOMA was “defending marriage,” but marriage is a thing, not a person. It doesn’t have rights. So DOMA was denying rights to a person who was harming no one.
Make sense?
Next up is Intermediate Scrutiny.
The test for this is as follows
The law serves an important government interest — not just legitimate like Rational Basis
The law is substantially related to achieving that interest — more than rationally connected like Rational Basis
This standard came about in 1976 in a case called Craig v. Boren—a largely unremarkable dispute where Oklahoma allowed women to buy beer at 18 but required men to wait until 21.
The Court decided that discrimination based on sex or gender deserved more than a Rational Basis rubber stamp, but wasn’t quite serious enough to demand Strict Scrutiny. So they created something in between—Intermediate Scrutiny.
So, Test #1: was there an important government interest?
Yes, it was traffic safety. The law was crafted because the Oklahoma legislature felt men got drunk and drove like idiots more than women. So they were trying to keep the roads safe.
Test #2: was the law substantially related?
On that, the Court said no. There wasn’t strong enough statistical evidence to show that men were substantially more likely to cause an accident when drunk than women. So even though the state had a good reason, the law wasn’t backed by data that established a relation to the interest.
Intermediate Scrutiny has since evolved to apply in other cases besides gender discrimination, such as content-neutral speech restrictions. Content neutral just means situations where government restrict when or where you can speak, not what you can say.
Last up is Strict Scrutiny—arguably the most talked about, because it usually involves controversial rights restrictions.
The test for that is currently:
The law serves a compelling governmental interest
The law is narrowly tailored to achieve that interest
It uses the least restrictive means available to achieve it
Strict Scrutiny applies when:
Fundamental rights are involved, like voting, privacy, free speech, etc.
Suspect classification, such as by race or national origin
Content-based speech restrictions—meaning laws targeting what you’re actually saying, like banning certain viewpoints or subjects entirely, rather than just regulating when or where you speak
Even though these three scrutiny classifications exist as a framework, they weren’t created at the same time. We mentioned Carolene Products, in 1938, and Craig v. Boren in 1976.
But Strict Scrutiny was built over time. The first seed was created via dicta in the majority opinion of Carolene Products.
Dicta is text in a court opinion that isn’t strictly binding because it goes beyond what was necessary to decide the case—but it isn’t throwaway either. Justices often use dicta deliberately to signal where the law might go in future cases.
Harlan Fiske Stone – Associate/Chief Justice: Supreme Court of the United States Associate: 1925-1941 Chief: 1941-1946 Lived: 1872-1946
Justice Harlan Fiske Stone, who wrote that majority opinion, said:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
What he’s saying is, the Court would let this fly under Rational Basis, because there wasn’t any serious denial of enumerated constitutional rights here. But if government were to attack those rights, the Court may have to consider a test stronger than Rational Basis.
And so they did.
Shortly after, in 1944, SCOTUS decided Korematsu v. United States.
You might recall this little skirmish named World War II?
In the wake of Pearl Harbor—’a day that will live in infamy’—one tyrannical son-of-a-bitch named Franklin Delano Roosevelt (again with this fucking guy) signed Executive Order (EO) 9066 in 1942, forcing Japanese-Americans into internment camps.
If you know anything about EO’s, you know they are orders from the president to employees of the executive branch. So how could FDR direct private citizens like Japanese-Americans to go to these camps?
Well FDR, that tyrannical son-of-a-bitch, and his congressional enablers then passed Public Law 503, which provided criminal penalties for violating military orders issued under EO 9066. Astounding how little respect FDR had for the Constitution.
In this case, Fred Korematsu, a Japanese-American citizen, refused to leave his home and report to an internment camp. He was arrested and convicted of violating the military exclusion order and Public Law 503.
Fred Korematsu
He challenged his conviction, and fought his case all the way to the Supreme Court, but sadly he lost. It was a dark time in America.
In 1983, Korematsu’s conviction was thrown out, when it was shown the government suppressed evidence in the case, and in 1998 then President Clinton awarded him the Presidential Medal of Freedom.
Justice Hugo Black wrote the majority opinion in Korematsu. In that opinion, he said:
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
You’ll notice he said “most rigid scrutiny,” not “Strict Scrutiny.” So that term came later, but again, Strict Scrutiny was built over time, and this was another step on the Strict Scrutiny ladder.
This established that race alone can never justify a law—any racial classification demands the most searching judicial review, and mere racial antagonism can never satisfy it. You can’t just make law against a certain group of people because you don’t like them. You have to have a compelling reason that goes well beyond mere dislike or antagonism.
Unfortunately for Korematsu, this didn’t translate to a win.
Hugo Black – Associate Justice Supreme Court of the United States Served: 1937-1971 Lived: 1886-1971
The Court ruled that because of the war we were in, the government had a compelling interest to detain Japanese Americans, as they were feared to be spies or operatives.
So they upheld his conviction, because it wasn’t just about racial animus, it was about a real belief that people like Korematsu might be working for the enemy, even though we now know, that was absolute nonsense.
Another case worth mentioning, from 1942, was Skinner v. Oklahoma. The Court addressed Oklahoma’s Criminal Sterilization Act of 1935, which allowed the state to forcibly sterilize people convicted of two or more felonies involving moral turpitude—though notably not all felonies qualified, a distinction that would prove legally significant.
Representing a unanimous Court, Justice William O. Douglas wrote:
Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.
In this case, Skinner won, where Korematsu did not. The Court found that Oklahoma’s sterilization law failed Strict Scrutiny because the state couldn’t demonstrate a compelling interest in sterilizing some felons but not others—the arbitrary distinction between which crimes qualified revealed the classification had no legitimate justification, let alone a compelling one.
William Douglas – Associate Justice Supreme Court of the United States Served: 1939-1975 Lived: 1898-1980
It’s worth pausing here to note a semi-related and ugly part of American jurisprudence. 15 years before Skinner, in a case called Buck v. Bell, the Court took a very different and ugly tone.
Carrie Buck was a young woman who had been raped by a cousin and was institutionalized to hide the shame. There was likely no psychological condition she suffered from. She was just a young girl who had been victimized, not only by a rapist, but then by her immediate family, who unfairly stigmatized her and sent her away.
At the time she was officially called, “Feeble-minded.” Today, it isn’t a recognized medical condition, but back then, it was a catch-all phrase to describe people who were intellectually challenged, or sometimes, such as in Buck’s case, people that nefarious actors just wanted to marginalize.
Buck’s “feeble mind” was a condition that authorities said had been present in her family for three generations.
A Virginia law at the time allowed for sterilization of inmates, or other institutionalized people, ostensibly to promote the “health of the patient or welfare of society.”
This time, the question of whether sterilization violates due process and equal protection was answered in a way that should make your skin crawl. In the majority opinion, famous (or infamous) justice Oliver Wendell Holmes wrote:
Oliver Wendell Holmes – Associate Justice Supreme Court of the United States Served: 1902-1932 Lived: 1841-1935
Three generations of imbeciles are enough.
Yes, he really said that in a Supreme Court opinion to justify sterilizing a young woman who’s only real crime was being victimized.
If thats not bad enough for you, consider this—Nazi Germany’s eugenics program drew direct inspiration from American eugenics laws like this, and their legal scholars cited Buck v. Bell approvingly as validation for their own racial hygiene policies.
When Americans criticized Nazi eugenics, German officials pointed right back at us and said, essentially, “you’re doing this too.”
They weren’t wrong.
Holmes’ “three generations of imbeciles” line was well known to Nazi eugenicists and cited in their literature. The United States Supreme Court had blessed compulsory sterilization, and Hitler’s government was happy to use that fact as a shield against American moral criticism.
Along with Chief Justice Roger Taney’s opinion in Dred Scott v. Sandford (1857), where he wrote:
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.
Roger Taney – Chief Justice Supreme Court of the United States Served: 1836-1864 Lived: 1777-1864
These are possibly two of the most disgusting passages ever penned by someone on our highest court. Both are reminders of why robust judicial scrutiny of laws targeting vulnerable groups matters.
Back to Skinner.
Over the next few decades the three prongs of Strict Scrutiny solidified into the framework we use today—imperfect, judge-made, and still debated, but the strongest tool available for protecting your rights against government overreach.
This brings us back to where we started—the Ninth Amendment, and what it could still become.
So how does this help you, or why should you care?
With this knowledge, if your rights are being violated, you might understand how you could attack those violations in court, using the Constitution and scrutiny as your wingman.
And if you’re motivated enough about protecting all our rights, not just the enumerated ones, YOU might be the person to get the Ninth Amendment involved in more case law—giving those unenumerated rights the legal force they were always promised.
Just because the Ninth doesn’t do much work now doesn’t mean it can’t. The text of the Ninth suggests it could do more heavy lifting than the other nine in the Bill of Rights combined.
I’m going to assume you’ve all heard of Miranda rights, correct?
It’s some version of this, depending on the state:
You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to an attorney.
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
In the United States, the fifth amendment reads as follows:
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Miranda addresses the part about not being compelled to be a witness against yourself. You see, back in 1963, Ernesto Miranda decided to kidnap a women, then put his dick some place it didn’t belong.
Ernesto Miranda
The police picked him up, questioned him for two hours, and eventually obtained a written confession from him. At no point however, did police tell Ernesto that he had a right to a lawyer.
So armed with the confession, Arizona prosecuted his ass—easily winning their case against him.
Miranda eventually obtained a lawyer, however, who decided that there should be a fucking rule that forces police to advise a person of their rights when they’re arrested. Without that, such confessions should be thrown out, as a lawyer may have advised their client to say or do something quite different from what they actually said and did.
Folks, remember four words if you’re ever being questioned by police: “SHUT THE FUCK UP!” That’s it. SHUT THE FUCK UP!
Ask for a lawyer, and say nothing, no matter what the situation is. Period. Always. Every fucking time. Got it?
It’s not that police are bad, but when you’re a hammer, everything looks like a nail. Police tend to feel like everyone they’re talking to is a bad actor. So on the off chance you might say something that makes them question your innocence, even when you are innocent, you could find yourself in a bad situation because you failed to SHUT THE FUCK UP.
Anyway, Miranda won at SCOTUS and his confession was thrown out, making his trial a mistrial. Since appellate victories don’t trigger the double jeopardy rule, Arizona tried Miranda again, without the confession, and still won.
So while Miranda changed US Law forever—helping innocent people not get railroaded by aggressive government tactics, that fucker was guilty as sin, and his SCOTUS victory didn’t help him one iota.
This is a law that says, if government violates your constitutional rights, you can fucking sue them for civil damages.
Miranda and code 1983 are what’s at issue here in this case.
Terence Tekoh was a low-level patient transporter at a Los Angeles hospital.
Terence Tekoh
A young lady was in the hospital, and at one point, under heavy sedation. During that time, she asserted that Tekoh channeled his inner Miranda and stuck a finger in her vagina while she was in the hospital.
The hospital called the fuzz, and Officer Carlos Vega showed up, questioned Tekoh for some time, without ever reading him his Miranda rights, and eventually Tekow wrote an apology for touching the patient inappropriately, which was deemed as a confession.
However, Tekoh was acquitted in his second trial after an initial mistrial.
I’m not sure how someone’s first hand testimony that he molested them wasn’t sufficient for a conviction, but I guess I have to trust the 12 angry men on this one.
Anyway, Tekoh, feeling like he won the lottery after his acquittal decided to double down and sue Officer Vega for violating his constitutional rights.
He argued that he didn’t vountarily talk with Vega, Vega pulled him aside, called him a bunch of racial slurs, threatened to deport his family, and a whole host of other shit, until he confessed.
I won’t bore you with the lower court shit, just know it made it to SCOTUS, and their question was, is Miranda a constitutional right, and if so, can Tekoh sue if he’s not Mirandized?
Let’s go to the arguments:
Roman Martinez
First up: Roman Martinez representing officer Vega.
He opened by arguing Miranda is simply a prophylactic rule designed to protect a person’s fifth amendment rights, and is not a right in and of itself. Just because you’re not mirandized, doesn’t necessarily mean your constitutional rights were violated.
He argues that while Miranda helps protect the fifth amendment rights of the individual, if some moron just blurts out a confession before officers mirandized them, you can’t fairly say the cops violated their constitutional rights and coerced a confession.
He argues that Vega merely took Tekoh’s statement. There was no evidence of coercion, courts and juries didn’t feel Vega did anything wrong, Tekoh just blurted out what he had done.
Justice Thomas was the first to chime in, since he has seniority and all. He asked about a previous case, Dickerson V. United States. So let’s discuss that for a minute.
Associate Justice Clarence Thomas
In that case, congress has passed 18 U.S. Code § 3501 – Admissibility of confessions. This statute came about after the Miranda case law was established, and was congress’ attempt to legislate away Miranda rights by saying voluntary confessions given before Miranda rights are given, should be admissible in court.
However, SCOTUS told congress to go pound sand with this shit, and the reason why is very important.
I know I go off on tangents—not even gonna apologize for that. Eat my entire ass if you don’t like it—I’m trying to learn y’all something.
The courts job is to interpret laws, regulations, executive orders, the constitution, and other case law. When they do this, it establishes new case law. But not all laws are on the same tier.
In the case of Miranda, they were interpreting the constitution. The case law they created in Miranda therefore is at the constitutional tier. Congress pass statutes, but they are on a lower tier to the constitution. So while congress could create new statutes to invalidate case law regarding a statute, they can’t write a statute invalidating case law over a constitutional principle, otherwise a law would be trumping the constitution. This is Dickerson in a nutshell. SCOTUS ruled in Dickerson, that congress cannot legislate away constitutional case law.
OK, done digressing, back to the case.
Justice Thomas wanted to know if Dickerson destroyed Vega’s case. If SCOTUS ruled that Miranda couldn’t be overruled solely by statute, then doesn’t that make Miranda a constitutional issue, and therefore qualify it as a constitutional violation?
But Counsel Martinez was like, “Nah, man. Miranda protects a constitutional right, but it isn’t a right in and of itself. It’s constitution-adjacent.”
Justice Roberts next asked:
Supreme Court of the United States Chief Justice John Roberts
John G. Roberts, Jr.
Mr. Martinez, if I could focus just for a minute on the language of the cause of action here, 1983.
It gives individuals a right against the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. Now, under Miranda, you have a right not to have unwarned confessions admitted into evidence.
You wouldn’t have that right if it weren’t for the Constitution.
So why isn’t that right one secured by the Constitution?
Counsel Martinez responded, “Man, a rule to protect a constitutional right isn’t a constitutional right itself. Nowhere else does this occur, that some stupid-ass procedural rule that protects a constitutional right, all of a sudden becomes a constitutional right in and of itself.”
Justice Kagan was the next to chime in. She could not wrap her head around the argument that Miranda is there to ensure the 5th amendment rights are preserved, and that if a Miranda warning isn’t given, that somehow counsel argues that doesn’t necessarily mean his 5th amendment rights were violated.
Associate Justice Elena Kagan
Counsel Martinez suggested that just because Miranda wasn’t given, could it not be true that cops were having a discussion with him, and he admitted to what he had done in a moment of guilt?
That maybe he wanted to confess, even if he knew he didn’t have to answer their questions?
There’s no reason to assume his confession was coerced at all, without evidence of such. Therefore, his right not to self-incriminate doesn’t have to have been violated.
Justice Sotomayor asked:
Can you tell me why we’re here?
Simple question, but complex reason. She’s asking that Vega not Mirandizing him may have violated his Miranda rights, but it was the prosecutor and courts who chose to admit that confession who royally fucked Tekoh in the ass. So why sue Vega?
Martinez was like, “Fucking Vega lied to the prosecutor and the courts about this bullshit confession he obtained. That’s why we’re going after him. The prosecutor and judge were going on bad info from Vega!”
Next up is Vivek Suri. He’s representing the federal government under Biden, as an amicus, in support of Vega.
His opener was a short banger.
Vivek Suri
Mr. Chief Justice, and may it please the Court: Miranda recognized a constitutional right, but it’s a trial right concerning the exclusion of evidence at a criminal trial.
It isn’t a substantive right to receive the Miranda warnings themselves. A police officer who fails to provide the Miranda warnings accordingly doesn’t himself violate the constitutional right, and he also isn’t legally responsible for any violation that might occur later at the trial.
He’s basically saying, even if the cop fucked up and didn’t mirandize, the prosecutor brought the evidence in, and the judge allowed it. So why is Vega the asshole here?
Justice Thomas jumped in first again, and simply asked, what if the officer lies about what happened during the interrogation?
Vivek is largely arguing 1983 claims are about things that happen outside of trial. But things that happen during the trial, are generally not 1983 claims, such as ineffective counsel, or other poor actions by the judge and prosecutor.
Vivek essentially argues that the remedy for a Miranda claim, is just to throw out the testimony that was given before a baddie was mirandized. It’s not to make it rain cash on the poor sucker.
Last up is Paul Hoffman, representing Mr. Tekoh, AKA Goldfinger.
He’s arguing that Officer Vega’s account is bullshit. Tekoh did not just willingly give up this info. Vega threatened him with deportation and shit, until he confessed.
Vega then lied and suggested that Tekoh, out of the blue, was just like, “Hey man, I’m sorry, I fingered her without her consent. I’m an asshole. Totally my bad.” As if somehow, he didn’t even feel he needed to Mirandize him yet, but then Tekoh just dropped the dime on himself straight away.
Paul Hoffman
Problem for Hoffman, none of the fucking trials actually found, based on the evidence, that Vega did coerce Tekoh. It’s Tekoh’s story, but that’s it.
If Tekoh just blurted out his guilt willy nilly, Vega really didn’t do anything wrong. But Hoffman needs to prove that Vega threatened him with deportation and such, and he just doesn’t have any court findings or testimony to back that shit up.
Think of it like three steps. The use of an unMirandized statement is a violating of the fifth amendment. 1983 let’s you sue for damages if your rights are violated. If Vega lied and said the confession wasn’t coerced when it was in fact coerced, and that confession was admitted into evidence, than Tekoh’s constitutional rights were violated by Vega, and Vega should be rewarded with some 1983 dollars.
If Vega is telling the truth, and Tekoh just sang like a canary because he was feeling guilty, as Vega suggested at trial, then Vega didn’t coerce that confession, he’s just reporting what he heard Tekoh say.
Since Tekoh was exonerated, you might wonder what harm he is claiming. The confession didn’t help the government convict Tekoh. But Tekoh’s claiming that the fact his confession was used as evidence against him, led to him having to endure a trial at all, and therefore he was harmed.
Hoffman is arguing that Tekoh’s life and reputation were harmed by all this, and none of it would have happened, had Vega Mirandized him, instead of interrogating him. And that’s what 1983 is there for—violations just like this.
The opinion, written by Justice Alito, and joined by the other 5 Republican appointees, decided it didn’t give a fuck whether Vega lied or not. That Miranda is not a constitutional right, it is a prophylactic rule that merely protects a constitutional right. The remedy for a Miranda violation is the evidence not being allowed into trial. It isn’t 1983 dolla dolla bills y’all.
Essentially, he’s saying that because it’s possible Tekoh just blurted out his confession, and Vega was in earshot of it, which would be admissible in court, that this proves that not mirandizing someone isn’t always a fifth amendment violation.
He wrote:
A violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute “the deprivation of a right secured by the Constitution” which is necessary to secure a 42 U. S. C. §1983 claim.
So Tekoh can go fuck himself, instead of his patients—he’s lucky he was acquitted.
Justice Kagan wrote the dissent. I’ll summarize it this way. “If Miranda is required to protect someone’s 5th amendment rights, and a Miranda warning isn’t given, someone’s fifth amendment rights were fucking violated. Alito, respectfully, you’re a crusty old senile fuck, and you should retire.”
Imagine going to buy a piece of property, and the realtor tells you it’s prime real estate. But then after you sign on the dotted line, you find out it’s in a flood zone, or close to something noisy like an airport. You got the ole bait n’ switch.
That principle is at the heart of this case for Luxshare, involving 28 U.S.C. § 1782—but for SCOTUS specifically, it’s what the hell constitutes a foreign or international tribunal. I know, you’re already riveted, right?
Well, a lot of people are apparently interested, because unlike most cases which have two sides, one representative each, and maybe one amicus between then, this case had three fucking people arguing for the petitioners, ZF Automotive, and two arguing for the respondents Luxshare. Five fucking people arguing this shit! That’s a record, for me.
Anyway…
Congress wrote 28 U.S.C. § 1782 to assist in international disputes, as a courtesy to other nations. As you may know, when you sue someone, you can request relevant documents, if you have evidence they’re pertinent to your case, via a subpoena.
So the gist of this law is basically that if a company is being sued in Germany for instance, but their headquarters are in New York, the German court can ask New York to order the company they want documentation from, to turn that shit over for use in German court proceedings, just as they’d have to do if the suit were all transpiring in the United States.
Most countries have a similar law—it’s just a way to reciprocate with each other in a world that has a lot of international business disputes.
When 28 U.S.C. § 1782 was originally written in 1948, it specified “courts” as the entity who can demand discovery. But then congress amended the language in 1964 to read as “foreign tribunals.”
It is well understood their intentions in amending this language were meant to broaden the scope to more than just courts, as there are other “official” proceedings that should have a right to subpoena evidence. It’s been applied to magistrates and governmental investigations around the world.
However, people have also attempted to use it to apply to international private arbitrations, which is why we’re here now—SCOTUS has had enough of this shit. Private arbitrations are when two parties agree to hire arbitrators, which are private entities—often lawyers—to settle their dispute out of court.
ZF Automotive
For the case in question here, in 2017, technology company Luxshare bought a Michigan factory owned by German auto-manufacturer ZF Automotive. But after moving into its new digs, Luxshare was not pleased with their purchase. They believed that ZF Automotive were less than honest about the value of this shithole.
As an Ohioan, I’d like to point out that it was in Michigan, so you’d think they’d have known it was basically worthless—nothing good comes from Michigan, except maybe Tom Brady.
Once Luxshare realized they’d gotten got, they wanted restitution. In their purchasing contract with ZF, they agreed to arbitration in Germany if there were any disputes of this nature. So using 28 U.S.C. § 1782 as their wingman, Luxshare requested a Michigan court to force ZF to help them with discovery documents from ZF Auto.
They wanted to prove they were highballed, since the ZF location in question is located in Michigan, but the discovery is to assist in support of their agreed-upon arbitration in Germany.
Stepping back for a second, I suppose I should explain something I haven’t previously. I know I often gloss over this, but in general, it should be understood that basically no one gets to go straight to the fucking Supreme Court.
Otherwise, the opposite of original jurisdiction is “Appellate Jurisdiction,” which is when a lower court rules, and a party of that decision, generally the loser, is none too pleased with those fucking idiots, and decides to appeal to a higher court.
This is called submitting a writ of certiori. The higher court reviews this writ, and decides whether they think it’s worth their time to review, or if they think it’s a big old nothing burger and tell them to pound sand.
If the higher court does grant certiori (agree to hear the appeal), either the petitioner loses again, or the superior court decides the lower court were fucking idiots, and overrule them.
So now, whomever lost the second round is pissed, and they appeal that appeal to a higher court again. This dance of sore losers eventually meanders it’s way to SCOTUS, one higher court at a time.
SCOTUS is generally an appellate court—the prettiest appellate court in all the land. There is no appeal once you lose there—other than maybe trying to get your shit heard again by a newer SCOTUS years later.
While we’re on the subject of shit I often gloss over, it’s also worth noting that on the subject of legal documents, it’s good practice to define terms that are written in your law or contract that could be ambiguous. The better one does this, the less likely the document will be scrutinized in courts.
For instance, in a contract, maybe you have verbiage that says, “This contract is null and void if either party acts like an asshole.”
Asshole is a word that is rather open to interpretation. So the contract would (and should) have a definitions section, and there, it would define “asshole” specifically. It might say, “Asshole: A person who has made publicly disparaging remarks against the other party.”
So now, when courts or arbitrators have to determine if one of the parties was an asshole, they clearly understand what the test is to determine if they were an asshole or not—did that party talk shit about the other publicly?
Make sense?
So, now that you understand that, this a great time to mention that those lazy fucks in congress didn’t define “Foreign or international tribunal” in 28 U.S.C. § 1782. They were too busy insider trading and grandstanding in front of congressional cameras to write an actual well-written law. Classic fucking congress! It should be known that probably 90% of what SCOTUS does, is cleaning up congress’ rather avoidable fucking messes.
SCOTUS is often just an editor for whatever congress writes. Congress writes a law with the linguistic skills of a caveman, so then some member of the public interprets their idiotic law one way, while some other idiot or government official interprets it another way, and now these two have beef which could have been avoided if congress had spent a little time writing a better fucking law.
So SCOTUS had to read 28 U.S.C. § 1782, and be like, “What fucking idiot forgot to define ‘Foreign or international tribunals?’ Here, let us fix this for you, you fucking morons. There’s 538 of you fucking idiots, and you can’t write a decent fucking law between you.”
I know SCOTUS is all polite and professional in public, but you know in closed quarters, this is the language they use.
Anyway, on to the arguments…
Counsel Roman Martinez opened for the petitioner’s ZF Automotive by pointing out that the reports from congress, when updating this law to read “foreign tribunals” clearly show that their intent was to create a cooperative effort with foreign governments in a similar way as we’d hope they’d do for us if the roles were reversed. There’s no fucking mention of private arbitrations in this shit.
Roman Martinez
He also points out that since arbitrations are more common than court proceedings, district courts are going to have these requests falling out of their assholes if the court were to side with Luxshare.
Justice Kagan, ever the skeptic, pointed out that things like “foreign university” or “foreign language” don’t necessarily mean it’s government related. So your fucking argument is full of holes, bro!
Counsel Martinez went out to point out that the rules commission who drafted this new rule, were specifically told to do so by congress, in an effort to enhance cooperation between nations. So how the fuck would that translate to private arbitrations?
Justice Breyer, being ever the contrarian was like, “Sure congress gave them a directive, but this language can be interpreted more broadly to include private arbitration, so what’s the fucking harm in that?”
Next up was counsel Joseph Baio, also arguing for the petitioners. He also wanted to answer Justice Breyer’s question with the Judge Judy defense. No shit!
Joseph Baio
He was like, “If some asshole goes on Judge Judy’s program and asks for discovery, we wouldn’t give that old bag jack shit. Even though she’s an actual judge, her fucking show is just private arbitration. So for you to side with those other assholes, you’d be arguing that a German Judge Judy, would have the right to discovery that American Judge Judy does not!”
My quote may not be verbatim, but that was the basic gist of it.
He went on to tell justice Breyer, “if you side with those dipshits, you’re basically incentivizing ambulance chasers like me to start our arbitrations in foreign countries, so we can bypass your rules here.
Justice Breyer seemed unimpressed.
Counsel Baio, being a man of extreme examples, also put forth his violin defense.
He was like, “A foreign orchestra could hold an audition for a violinist. That is a decision-making process that would be allowed if you ruled for those fucking idiots over there. Do you really want that shit?”
Justice Sotomayor, seemingly unimpressed, asked about the World Trade Organization (WTO). She was like, what if they pick some arbitrators. They’re an independent organization, and not a government. So are they fucked?
Counsel Baio was like, “Listen, I’m sick of your shit. If the individuals disputing the case select the arbitrators, it’s fucking private, and they can get bent. If however the WTO picks the arbitrators, it’s an international organization of cooperating governments, so they get to demand discovery. Why is this so difficult?”
Next up was Edwin Kneedler, acting on behalf of the US Government in support of the petitioners. His opening was basically a greatest hits of the first two. He was like, “Listen, y’all know the reason we passed this fucking law. It was about international cooperation with other governments. Why are we even talking about this shit?”
Edwin Kneedler
He argued quite simply, that the line he draws, is that an international tribunal has to be:
Established by government, and exercising governmental authority.
He also cited international comity. The idea that the standard the respondents want isn’t what other countries recognize. So if he were to lose, the US would be giving up discovery like a twenty dollar whore, where other countries would be more like a thousand dollar whore or something.
Finally, for the respondents, we first have counsel Andrew Davies. He argued that the “best and most natural interpretation” of foreign tribunal includes commercial tribunals, because they’re adjudicating a party’s legal rights.
Andrew Davies
He also points out that the courts benefit from arbitrations, because that means they don’t have to handle all those fucking disputes. So if SCOTUS rules against his side, that will actually create more work for the courts, not less, because people will be less likely to arbitrate international affairs knowing they won’t have that discovery option available.
He also cited that the court has sided with previous arbitrations, as promoting international comity, so the other side are a bunch of fucking liars spewing bullshit. That while they may be right that some countries don’t provide arbitration support, most of our major trading partners do.
Justice Neil “Golden Voice” Gorsuch chimed in and was like, “Back in 1964, arbitration wasn’t “a thing” like it is today. So surely congress then couldn’t have envisioned the world we live in now, with fucking arbitrations all over the god damn place. Clearly, congress wasn’t considering private arbitrations when they wrote this fucking rule, yeah?”
Associate Justice Neil Gorsuch
Counsel’s response was essentially to point out there there are lots of countries already supporting arbitrations in this manner, and the language doesn’t rule it out, so that should be good enough.
Justice Breyer, siding with Gorsuch was like, “Dawg, you crazy.”
Finally, counsel Alexander Yanos for the respondent. He dug deep and was like, “Hey man, these other assholes are just flat wrong when they say congress didn’t anticipate arbitration in this law. The senate report used to incite the committee to draft this law cited a German Mixed Claims Commission, which was effectively arbitration.
Justice Roberts pointed out that a representative for the government was here, and arguing the opposite position. Shouldn’t their opinion matter?
But counsel Yanos was certain that the point of the law was for international cooperation. If an arbitration is set up in a foreign country, and it’s decisions are binding under law, and only appealable by the courts, then it’s an international tribunal, even if it’s private arbitration, because any appeals do end up in court.
Alexander Yanos
Justice Gorsuch, seemingly unimpressed with counsel Yanos’ argument, and in agreement with the idea that it’ll add a lot more work to American courts, pointed out that 3rd party discovery is a pain in the ass that no one fucking likes. As such, he’s pretty sure congress wasn’t intending to make that shit the norm.
In a unanimous decision for ZF Automotive Group, SCOTUS decided that a foreign and international tribunal shall be defined as a governmental agency abroad, and not some rando third party arbitrators. Otherwise, it’ll basically be anarchy up in this bitch. Anyone with an international beef that forms some sort of inquiry board will be asking for shit they have no right to ask for.
As such, ZF is not required to hand over documents to Luxshare under 28 U.S.C. § 1782.
Weirdly, Justice Barrett who authored the opinion acknowledged that the word tribunal could certainly be interpreted as something that isn’t governmental in nature.
Associate Justice Amy Coney Barrett
She also acknowledged that foreign just means not located in the US, it also doesn’t have to mean a foreign government.
But when used together, a foreign tribunal is generally thought of as a governmental agency that isn’t part of the United States. Her argument for this was the term “foreign leader.” She was like, you wouldn’t call the president of a company abroad a foreign leader would you? Fuck no. You’d call the leader of a foreign country that.
They went on to define a foreign tribunal as a governmental agency from a foreign country, and an international tribunal is one where two governments join together to form some intergovernmental agency, like maybe NATO, or the United Nations.
She then suggested that it was plainly obvious the US passed this law to create a level of mutual respect among international governments and the US, and if that’s the purpose, helping third-party arbitrators doesn’t really serve that purpose.
She finally hit her opinion home by pointing out that in the US, third-party arbitrators don’t often get the right to demand discovery. So if we don’t do it here at home carte blanche, why the fuck would we give some international assholes that power?
Judge Charles was wrong in his decision, but Oklahoma legislators reacted wrongly as well, and the higher courts were charged with making it all right. Many conservatives were upset the Save Our State Amendment was overturned, but they shouldn’t have been. If a statute can lawfully target the Muslim faith, one could lawfully draft laws targeting Christian faith as well.
American legislators define American law in their respective jurisdictions. There should not be a need to specifically exclude Sharia law, because unless Sharia law verbiage happens to be on that jurisdiction’s register, it should never be considered in the first place. The exception being in civil court where Sharia law may have been part of a contract.
Rape is not excusable under U.S. law because of religious views, so Judge Charles simply made an improper ruling that needed overturned—no additional legislation needed. If the man had killed his wife in an honor-killing, would the judge still have come to the same conclusion?
While I applaud Oklahoma and other such states attempting to take measures to prevent this in the future, the higher courts are there to reverse such decisions, and there are mechanisms in place to remove judges who go afoul of the law they are charged with adjudicating. Oklahoma didn’t need to amend their state constitution, they merely needed to deal with a judge violating his oath to uphold it.
If they truly felt it was necessary to elaborate, the Oklahoma legislature could have simply wrote something to the effect of the following:
The criminal court of Oklahoma may not consider laws which are not specifically on the United States Federal Register, Oklahoma State Register, or any applicable local registers as an argument for innocence or guilt.
It is succinct, and doesn’t target any single religion.
However, there’s a deep hypocrisy here with many conservatives. A majority of them are Christian, and they were the ones most vocal about prohibiting Sharia law, yet they often have no qualms about legislation such as blue laws or the proposed Defense Of Marriage Act.
Blue laws have curiously stood up to constitutional challenges because proponents have argued that while they were enacted as a way to force people to conform to a religious doctrine of the Sabbath, it can also be viewed as merely the government in question, ordering a day of rest, and does not necessarily have a religious component, making it okay.
Somehow the Supreme Court agreed—but how? It’s not a day of rest, it’s a day of not being able to buy alcohol. If they closed down all business on Sundays, then and only then would it be a forced day of rest.
More important, what business does government have telling you when to rest in the first place? Why not tell me when I have to go to bed then? Maybe force me to take a nap too, while we’re at it.
As for the Defense of Marriage act, it is entirely contrary to the purpose of the Constitution. It was never intended to be a dictionary to define something such as marriage, nor was it intended to tell the people, in this case the gay community, what rights they have. One look at the Bill of Rights and it’s clear that it was written to define limits to the federal government, not the people. The Volstead Act (Prohibition) was the first attempt at perverting the Constitution in such a manner, also largely based on religious doctrine, and that was rightfully repealed a short time later. All such acts imply the government has the power, not the people.
As for blue laws, the supreme court did something in declaring these laws constitutional that I think violates their oath of office.
The Supreme Court Of The United States
The Supreme Court Justices are sworn to uphold the Constitution, not the will of the majority. If we were a democracy, a system where only the majority opinion mattered, instead of a republic with a Constitution, we would have no need for them.
But we have a Constitution, and it exists to protect the rights of the minority from the majority. The Supreme Court is charged with interpreting it as written. What the SCOTUS did was find away to allow the majority to deny rights to the minority (atheists like myself), instead of judging these laws on their merits against the Constitution.
In so doing, they undermined the purpose of them being appointed, not elected, so that they don’t act on popular opinion. They behaved like legislators instead of guarantors of our rights.
Christians upset about Sharia Law arguments being allowed in criminal courts are absolutely right to be upset. But they must cease to endeavor to make American laws congruent with Christian doctrine also, or they are no better than the cause they are fighting against—hypocrisy destroys credibility.
I have a great respect for police officers. Like soldiers, they selflessly put their lives on the line for my safety. But a good police officer is a humble one. They understand that they are not above the law—they are there to serve and protect the citizenry. When a humble and respectable person is wrong, they admit it. More importantly, when they’re wrong, and a 12-year-old kid asks for their badge number, they give it up and show dignity and honor for the job they are charged with. This Las Vegas police officer however, has traded such dignity and honor for a sense of entitlement and a god-complex.
He did something illegal by parking his motorcycle where a motorcycle shouldn’t be parked unless he had been chasing someone, or doing other official police business that required an emergency parking job. As it turns out, he was getting food/drink and he got called out on his illegal parking by young Jeremy Drew, a kid with a pretty good sense of justice.
If this officer had a shred of dignity, he would have looked at Jeremy and said something like, “You know, you’re right. My sincerest apologies. I was wrong to park here. Here’s my badge number, and if you feel a duty to report me, then by all means, you should do so.” Would the officer had been so kind had I parked my motorcycle there while I got lunch?
Las Vegas PD Officer In Question
Then that officer should seriously reflect on why he became a cop in the first place, and whether he’s serious about defending the Constitution and local laws—therefore not violating them himself. He then should either resign if he doesn’t have the honor to do the job properly anymore, or change his way of thinking and behaving if he does.
Many police get upset when we citizens show little respect for them. To those officers I say this: don’t do actions that are disrespectful, hypocritical, arrogant, or plain illegal, and you won’t usually get disrespected. The corrupt among you, the indifferent among you, and the good officers who do nothing about the bad ones, serve as the main reason respect for the badge is waning.
We all know bad cops are bad, but that’s simply not the whole issue. I understand the idea of the police “brotherhood,” but if one of your fellow officer’s is out of line and you accept it, allow it, and/or condone it, you’re indifference might as well be an endorsement. If it is a crime for a person watching a murder to do nothing (depraved indifference), then you as police officers should also do something to stop your fellow officers when they do wrong as well.
The honor for the badge should be far more important than the honor for the random person behind it. If they don’t respond apologetically and remorsefully—showing clear signs such behavior will cease, then maybe a discussion with superiors or internal affairs is in order.
While most police officers are good, the ones that are doing illegal and/or inexcusable acts are rarely dealt with when their offense is only a misdemeanor like above, and this tolerance of bad behavior is exactly why America has shifted from a country that heralded Andy Griffith to a country that embraces the “F*** the police” mantra so prevalent in pop culture these days.
In another instance, on May 26th, 2012, a Portland Maine law student who remained unnamed by choice, was carrying a sidearm, as is his Constitutional right. A resident with what appears to be little understanding of the rights to carry a sidearm, decided to call the police and report the innocent open-carrier. Officers were dispatched to the scene. See the story here:
Again, an officer was in the wrong, and reacted incorrectly once confronted by a citizen who was in the right. Here’s what should have transpired but didn’t.
An officer should have never been dispatched. The person who called the police should have been advised by the dispatcher that carrying a weapon is a legal act and that they cannot dispatch an officer unless it appears there is an illegal act happening.
The officer merely did his duty in responding, but he was incorrect in his interpretation of the law. I can forgive an officer for not being in command of the laws like a lawyer—a law degree takes a lot longer to attain than your typical police academy certification. But if someone is telling you the law, and they seem to know what they’re talking about, especially when you don’t, then stop acting like you do. The law student was right, which means the officer was either purposefully being incorrect, or just wasn’t certain and thought he knew the law. Either way, arguing with someone when you don’t know you’re right is pure arrogance. What would have been so hard about saying, “You may be correct, let me check with my superior” or “You’re right sir, my mistake” once corrected by the law student.
There are a litany of videos of police officers abusing their power, these are merely two. The military and police are somewhat similar, yet where the military is revered for its respect and honor, the police are too often not. The one glaring difference between the two is labor unions—soldiers aren’t unionized. When union entitlement mentalities take over a workforce, the workers rarely fear for losing their job. Someone with little fear of getting fired, isn’t so compelled to do the right thing—in government, this is a recipe for abuse.
When legislators, police, and other government employees violate the law, the penalties imposed are usually far less severe than what John Q Public might endure if he committed the same offense. This is fundamentally wrong in a country where “We the people” give power to the government.
Instead, government officials should be penalized more severely. I didn’t take an oath to defend the Constitution, but they did—they know better. If we can’t trust them, who can we trust? And if we can’t trust them, “We the people” who actually have the power according to our Constitution, might as well get rid of them. Would you hire an employee if you thought they would steal from you?
Barney Fife and Andy Griffith from The Andy Griffith Show
We voters must vote to rid our government of organized labor so that we can better hold the rule-breakers accountable. But police must start to care about the honor of their profession and police themselves as stringently is they police us. Doing so will yield top quality public servants. Until then, we get the Barney Fifes and/or Joseph Miedzianowskis instead of the Andy Griffiths and Elliot Nesses. We deserve better.
What are laws actually for? If you’re thinking to prevent crime, think again. While I don’t support anarchy, if there’s no laws to be broken, there’s no crime, right?
The legislature writes laws to set a standard for law-abiding citizens to know what will and won’t land them in jail. It’s the best way to ensure fairness in prosecution.
Some legislators may believe that would-be murderers would pause and think, “I want to kill this person, but Nancy Pelosi says that’s wrong,” but I think most reasonable people know this is simply not true.
Nancy Pelosi (D – California)
Taking it further and speaking in absolutes; a law cannot stop a crime—criminal acts are physical actions. In order to stop a moving object, you need another physical object to interfere. Isaac’s Laws of Motion, remember? But a law is just words on a page and cannot technically prevent anything. A police officer could, but we’ll get to that in a moment.
Let me give an example of why this nuance of defining standards is important and what happens when it’s done wrong.
In 1995, after the repeal of the national 55 mph speed limit, Montana passed a daytime “reasonable and prudent” law. In what could be one of the most glorious acts of libertarianism ever enacted, the state entrusted the people of Montana to determine for themselves a safe speed to travel under the conditions at any given time. To many people’s surprise, studies showed that letting people drive as fast as they wanted actually reduced highway fatalities. They got to where they were going faster too.
Montana Reasonable and Prudent Speed “Limit” Sign
Then on March 10th, 1996, at a brisk 85 mph, along came Rudy Stanko and his Camaro, when Kenneth Breidenbach, a Montana Highway Patrol officer pulled him over, citing him for unsafe driving in relation to speed. See the legal arguments here.
Stanko was initially convicted, but “Reasonable and prudent” wasn’t properly written, making Stanko the victim of bad law.
Stanko’s attorneys appealed, stating that the “reasonable and prudent” statute was constitutionally vague—they were right. The judge agreed that a person cannot be cited for not driving reasonably and prudently unless the state first defines reasonable and prudent, which it hadn’t. As such, Stanko had no way of knowing if he was doing something that would earn him a ticket, and thus no way to avoid doing it.
Although I hated to see the Montanabahn go, we cannot allow police officers and courts to arbitrarily decide why one person doing 85 is OK, and the other is not. Why? Officer Ken or Justice Joe, for instance, could cite their cheating ex-girlfriends at will for something they let everyone else get away with—I assume you get the point.
As a libertarian (and a Corvette owner), I of course hoped that Montana would have attempted to define reasonable and prudent, which I concede may have been monumentally difficult, but instead, they reverted back to an actual speed limit of 75 mph, and this great bastion of libertarianism died a sad yet preventable death.
So now that I’ve illustrated the purpose of laws and what a good law does, to be fair, I should point out that some laws may serve as a deterrent. However, crimes of a violent nature are also usually crimes of passion, which are usually only preventable with a weapon, not a law.
So do police prevent crime?
Think about all the times you might call the police. More often than not, they are called because either a crime is in progress or has been committed. Also, when police pull someone over, they are doing so because a traffic law has been broken, not because you were about to run a red light—which was clearly still yellow—dammit.
In both instances, the crime is investigated and/or prosecuted, not prevented. It is a very rare occasion you would call the police before a crime is perpetrated and the police would intervene to stop the act before it was able to be carried out.
Again to be fair though, as evidenced by high rates of recidivism, when police arrest someone who committed one crime, they are often preventing the next one on that felon’s “to-do” list.
To all police officers, if you’re one of the many honorable and law-abiding people putting your life at risk for me on a daily basis, I appreciate you immensely—as we all should. So please don’t assume I’m criticizing your sacrifices.
But I believe preventing crime is ultimately a duty of the people. This is one of the many reasons why we have the 2nd amendment and why we all should be more apt to take advantage of it. We should encourage citizen-based crime prevention options, and stand your ground legislation should be nationwide. If a criminal knew most of the neighborhood was armed and would gladly shoot them without repercussion, the innate sense of self-preservation might just override the desire to steal your car stereo—it is not worth dying for.
As far as the police go, I firmly believe that as a nation we should have far less police officers in favor of more police detectives. I don’t blame the officers themselves, they’re just doing a job, but too often the police serve as a means of income for the community via traffic enforcement instead of preventing and solving crime, and this isn’t in the people’s best interests.
So how do we prevent crime then? As you may have imagined, I have some suggestions. Here’s but a few:
Stop writing unneeded laws: I won’t go deep into the drug debate here, but it is a perfect example. Most violent drug-related crimes occur because recreational drugs are illegal. This idea was proven beyond any doubt during alcohol prohibition and its subsequent repeal approximately 80 years ago. Deep within our nature exists a truism: if you encroach on mankind’s freedom, we will lash out—sometimes quite violently. Don’t believe me, tell your kid not to do something, see what happens.
Reign in entitlements: As long as we’re paying welfare mothers to have welfare babies that serve more as a source of income than an outlet for an abundance of motherly love, we’re going to have children who grow up with little to no sense of morality. If I feel I’m entitled to your car, I’ll likely just take it? However, if we force people to sink or swim, we’ll have a lot more people who develop a good work ethic. People who work for things appreciate them and don’t feel compelled to take what others worked for due to another innate quality in most humans—empathy.
Improve education: Get rid of teacher’s unions, public schools, etc., and have proper free market education. If free markets can make a better car, and I think Russia vs. America proved this, then it can build a better school too. Studies have shown private schools routinely outperform their public counterparts. One look at any prison shows that most of the people in there can’t even spell incarceration. Sure there are genius criminal minds, but contrary to Hollywood hype, they’re not as common as you would think. A smarter society is usually a more peaceful one, whereas most criminals are idiots.
Improve the economy: Some criminals are psychopaths, but some criminals are just desperate. Psychopaths will commit crimes as long as they are free, but with a strong economy, you at least reduce the crimes of desperation.
Ultimately we need to adopt a “No victim, no crime” policy then restore our country’s greatness such that people don’t feel the need to do bad things to survive. but the answer is almost never more laws and more police.
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action
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The Logical Libertarian™ 