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Comment by aric | Hacker News Reader

"...the courts said the only exception is if defendants expressly tell police they are invoking their Fifth Amendment rights..."

The absence of speech should be protected as freedom of speech by the First Amendment. The emphasis is on should. I wonder in what ways it's been challenged in that sense. Everyone who wants to stay aware of their rights concerning [don't talk to police] topics is hopefully taking note and updating others on this news of last year. It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right. Yet so it goes. "I invoke my Fifth Amendment rights. I want to speak to a lawyer. (repeat)"

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"It's petty, troubling procedure to be forced to verbally invoke a primary Constitutional right before one 'obtains' that right"

Which right are you referring to here? As has been pointed out, the right to remain silent does not appear in the constitution. :) Only the right to not be compelled to be a witness against yourself, which is not the same at all (and does not need to be invoked)

I'm referring to the right to not self-incriminate. That is the issue at hand. What you said is untrue twice over. It's central to this issue and it does "need" to be invoked. The SCOTUS made some fateful rulings in 2013 and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about.

"I'm referring to the right to not self-incriminate."

Also not in the constitution. Cite otherwise. The right the article is talking about is the fifth amendment, which only says "nor shall be compelled in any criminal case to be a witness against himself".

Not the same as a general right against self-incrimination (and no court case has ever held otherwise ...)

"What you said is untrue twice over. "

Again, in what way? You are the one who refuses to actually back up your statement that this right appears in the constitution, or was understood to be primary constitutional right.

(Spoiler alert: It hasn't been. There are plenty of state and other supreme court cases where silence was allowed to be used against people, and until the time of Miranda, nobody believed this was part of the fifth)

" It's central to this issue and it does "need" to be invoked."

I'm still not sure what you are talking about. I know what the article is talking about. The article is talking about an implicit right to silence created by the Miranda decision that the court found to be necessary to protect people, and its gradual erosion.

" and the gist ever since is that one must invoke the Fifth in order to be perceived as protected by the Fifth at that time. That's what the article is about."

See above

It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries.

You are of course, welcome to look up the caselaw history if you don't believe me.

It simply was not understood to be a primary constitutional right, contrary to your assertion. There was not even anything you could invoke. Prosecutors were free to use your silence against you

Talking about it as if it has always been an understood part of the fifth amendment does nobody any favors. It hasn't. Again, you won't find any serious legal academic who argues otherwise.

Here's an unbiased view by a preeminent con-law scholar: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema...

Note the section on pre-1965.

The truth is this is the problem with rights whose plain text does not appear in the constitution, like privacy, like the exclusionary rule, like a lot of things - they tend to erode over time.

But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.

You're confusing explicit rights with implicit rights built on precedence. Much of what's considered Constitutional rights is not definite and explicit. Likewise, the Constitution doesn't explicitly state that you have a right to your physical senses as a sentient being beyond ambiguous terms pertaining to welfare. This reminds me of a leading worry during the writing of the Bill of Rights: a worry that the affirmation of some specific humanitarian rights might regrettably lead society into believing that mere omission becomes the grounds for abusing freedoms unstated.

> It is only in the past 50 years that any court has ever held the fifth amendment gave you the right to remain silent, and in fact, precedent was the exact opposite for centuries.

Yes. It became a right. Go ahead and argue all day about what you perceive as fulfilling the qualification of a "right." I'll argue in direct contrast if your interpretation of rights remains narrow and dictated by the past. It won't help the situation at hand. Miranda warnings wouldn't have resulted if it weren't for precedence and perceived rights upholding it. Now the tides shift again. You're free to call this a "return to the past" or a "return to previous rights I think you never had" or whatever you wish. I call it the erosion of rights.

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Edit:

> But the solution to that is not to pretend they are written into the constitution and then lament a changing ideology of the supreme court, but instead actually put them there.

That would be ideal. That would be a colossal task, indeed, in lieu of a great number of other rights continuing to erode through an oligarchy's surveillance institutions and corporate decree.

You're caught in a semantic rut. Your peer in this conversation isn't suggesting that there is no "right to silence". Re-read his comment. He's acknowledging that there is an implied right, but pointing out that it is not in the Constitution. He agrees with you that the right is eroding.

His disagreement regards the solution that erosion. Your solution seems to be to shore up the implied right to silence that comes from Miranda. His is to add an amendment to the Constitution to formalize a right to silence.

It's a semantic rut, perhaps. It's not necessarily my semantic rut. Off the bat he was arguing down this road as if to suggest that I was implying that "remaining silent" was explicitly spelled out in the Constitution -- something I never implied. I'm not stating solutions. I'm commenting on results. Ideas for solutions are numerous and probably least served for attention in this thread. A full constitutional amendment would be great. Agreed. Unfortunately, that's a daunting likelihood given the prevailing winds.

This matter would benefit from re-reading my comments equally, as well, but I digress. No worries. Thank you for your added thoughts.

You wrote: " [basically it's sad that one must] verbally invoke a primary Constitutional right before one 'obtains' that right"

Note: you argue it is a primary constitutional right. Primary constitutional rights are those actually found in the constitution. Yours is not.

So when you say this is "something I never implied", i strongly disagree. If you didn't mean to imply it, fine. But I guarantee that anyone with any legal background read your comment and came away with the same impression.

Your argument seemed to me to be "because it's a primary constitutional right, I should not have to invoke it explicitly".

My argument is: You have to invoke it precisely because it is not a primary constitutional right.

The term "Constitutional right" refers to legal rights derived from and related to the Constitution. Hence, they're termed Constitutional.

If you disagree with this term, you disagree with thousands upon thousands of other rights that are equally considered Constitutional and part of Constitutional law. Most Constitutional rights are not explicitly stated in the Constitution. Instead they're derived from interpretation of the succinct language used in the Constitution. This topic is rooted in Constitutional rights. I respect that the word 'primary' could be misinterpreted. And it's subjective. Personally, I don't know where I'd place this issue on a list of humanitarian rights if I had to rank. Most issues related to speech and freedom from tyranny, and its numerous forms of persecution, are issues that I usually deem 'primary.'

"The term "Constitutional right" refers to legal rights derived from and related to the Constitution. Hence, they're termed Constitutional."

Dude, you said "primary constitutional right", not "constitutional right". They are not the same.

Additionally, you are seriously confusing primary constitutional rights and rights and rules whose basis is implementation of constitutional rights. They are not the same as constitutional rights either.

For example, the exclusionary rule (that excludes evidence obtained through police violate your constitutional rights) is not a constitutional right, it is a judicial rule grounded in sane implementation of the 4th amendment.

In any case, this is not worth arguing any more for me.

Like I said, I respect that using the word "primary" is contentious. If that's your only true point, then there's little argument to be had other than a subjective nature of what I consider primary. If your argument extends past that, about the term "Constitutional right" itself, then, again, you'd be wrong to imply that "rights and rules" derived from Constitutional interpretation aren't Constitutional rights. That's not judicial wordplay. It's common language.

Example:

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"What to Say to Invoke the Right to Silence

The new Supreme Court decision raises weighty questions, such as whether it’s reasonable to place the onus of asserting constitutional rights on everyday people, most of whom have never cracked the spine of a criminal procedure or constitutional law book. The more practical question is what, exactly, an out-of-custody person must say to inquisitive police officers in order to claim the right to silence. To be safe, they should make clear that they are invoking their Fifth Amendment right to silence and have nothing further to say. That way their subsequent failure to answer any questions cannot be mentioned at trial."

by: Micah Schwartzbach

http://www.nolo.com/legal-encyclopedia/when-how-invoke-your-...

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This writer uses the term "constitutional rights" in context. He later says, "...invoking their Fifth Amendment right to silence..." (i.e. "... invoking their Constitutional right to silence...") in direct context. I won't dig up numerous other examples from lawyers who write about this subject in-depth. Court rulings continually change the landscape of rights. They change what's inherently so-called "Constitutional" at any point in time. Many issues become topics of people's Constitutional rights once they're challenged on the basis of the Constitution. This is irrespective of a changing landscape's rulings at any point in time.

Outside of that language, we may agree more than we disagree.

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