Dred Scott Died for Your Sins

by zunguzungu

There was a damnable moment in which Lieberman and McCain were seen to be centrists, a moment which I hope is passed; one silver lining to the Republican party’s recent descent into insanity is that there isn’t even a rhetorical centrist middle that conservatives like these people can occupy, and so they’ve both had that bridge burned beneath them. Good riddance. But along with the bullshit in Arizona, a confluence of events nicely illustrates the extent to which what once passed for a kind of reasonable American centrism is essentially based on the American state religion of unrestricted state power against people who aren’t like us.

Item the first: John McCain made the moronic point the other day that it would be a “serious mistake” to “mirandize” Faisal Shahyad (the pathetically hapless would-be Times Square car bomber): “at least until we find out as much information we have…Don’t give this guy his Miranda rights until we find out what it’s all about.”

Now this is ignorant for a bunch of different ways, but the main one is that — as Dana pointed out — reading a suspect his or her “Miranda rights” is not a magical incantation that endows its subjects with rights but a mandatory part of criminal interrogation. All criminal suspects already have rights (5th amendment says you don’t have to incriminate yourself, 6th amendment says right to an attorney), and as the supreme court ruled in Miranda v. Arizona, unless the suspect understands those rights, he or she cannot be considered to have waived them. So if the police interrogate a suspect toward a confession or interrogate them without the presence of an attorney, whatever evidence they acquire is inadmissible in court unless they informed the suspect of those rights before hand. That’s it. It’s not even much of an impediment to law-enforcement, really; Ernesto Miranda, after all, was still convicted even once the inadmissible evidence was stricken from the case against him. And “mirandizing” Faisal Shahyad is particularly meaningless, since the case against him doesn’t rest on self-incrimination, nor would either 5th or 6th amendment rights make anything he said off limits for investigating co-conspirators or whatever (getting him an attorney, in fact, would be the best way to get him to give testimony in exchange for a plea bargain).

What’s at stake here is something dramatically different: by pretending that a suspect only has rights if the police grant them, the meaning of the rights we have are fundamentally altered, as is the meaning of citizenship. The Bill of Rights is fundamentally a limitation on what the government can and cannot do; the 5th and 6th amendments say that the state cannot force you to incriminate yourself and cannot refuse you an attorney. It is your choice, and to make that choice — so ruled Earl Warren and company — you have to know that you have a choice. What McCain wants is something utterly and completely different: instead of rights being something we have by default, and the legal obligation being on the state to recognize them, McCain wants those rights to be something the state can choose or not choose to give us. In the language of the Dred Scott decision, a criminal suspect has no rights which the state is bound to respect. Which is to say, his ignorance perfectly dovetails with the exact practice of state power which he and people like him consistently support: optional and discretionary, something the state can choose to offer rather than be constrained by.

An important conceptual move in all of this is re-imagining the place where rights exist, re-writing the Bill of Rights so that it lists the rights that citizens have rather than being a check on the things the state can do. And this is a crucial distinction, one that the founders quite clearly chose to make, knowing that they were making it. But Joe Lieberman doesn’t know this, and for item the second, is now “putting together legislation to amend that to [specify that] any individual American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights.” “If you’ve joined an enemy of the United States in attacking the United States and trying to kill Americans,” he proclaims, “I think you should sacrifice your rights of citizenship.”

This is such a bad idea for so many reasons, not least of which being the fact that stripping people of their Miranda rights at the beginning of a criminal investigation because you already know they’re guilty is the sort of thing that would make Franz Kafka blush like a pink spring morning. But the Bill of Rights just doesn’t describe “citizenship rights,” and can’t by a function of what it is. Because it restricts the actions the state can take, the citizenship of the person or people against which the actions are being taken is simply irrelevant. Read the thing, for Christ’s sake.

The first five amendments are each statements of what the government cannot do:

1. Congress shall make no law…

2. …the right of the people to keep and bear Arms, shall not be infringed…

3. No Soldier shall, in time of peace be quartered …

4. The right of the people to…shall not be violated…

5. …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…

8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

These are all negative statements in which — though the passive voice constructions make it a little less obvious — the negation applies to the state. And in the sixth and seventh amendment, the positive statements about what the state can do are in the context of juridical proceedings, which is to say, they tell the state what limits its actions in situations where the state is already doing something:

6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

7. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

One of the baddest-ass of the first ten amendments, though, is the 9th, which clarifies that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As James Madison put it when he introduced the resolution — in response to Hamilton’s complaint — “one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system” was the notion that “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”

In other words, the problem with explicitly listing the things the state couldn’t do was that it might be therefore implied that the state could do everything else. The 9th amendment clarifies that this is not the case: saying “no” in certain cases doesn’t imply saying “yes” in all others. Which, in turn, quite clearly establishes that the purpose of the entire Bill of Rights is precisely not to endow citizens with rights but to enumerate ways the government cannot behave. Toward anyone.

Which is why the Bill of Rights is not, and cannot be, about “citizenship rights.” It cannot be a set of properties that inhere to you if you are the right kind of person; for better or for worse, that’s simply not how the document was written. It limits what the American government can do, a limitation that applies all the fucking time always you illiterate un-American bigots. If you’ll pardon the moment of honesty. But it’s absolutely clear why they don’t want to read it that way; just as (via Lemieux and Coates) it’s absolutely clear why the Bill of Rights stops applying the moment the accused doesn’t seem like one of us (even if, in the case of Faisal Shahyad, he’s an American citizen arrested in the United States): law and order is for white people, but for terrorists, lynch law applies. In the language of Dred Scott, such people have no rights which the state need respect.