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