In his book, Papal Sin, Garry Wills contends that the Catholic Church
is trapped by “structures of deceit” — commitments
to false doctrines that can be sustained only by a habit of compounded
falsehoods. If a pope errs, he argues, the doctrine of papal infallibility
forces his successors to lie in order to maintain not only his error
but the semblance of infallibility. The Church can’t afford to
It’s a plausible argument, if you reject papal infallibility,
as Wills does. In fact he rejects most Catholic doctrine from the earliest
centuries of the Church, so that you wonder why he still calls himself
The argument actually applies with greater force to the U.S. Supreme
Court, which doesn’t expressly claim to be infallible, but acts
as if it were. The Court has now upheld its controversial ruling in
the 1966 Miranda case, requiring police to inform suspects of their
rights before questioning them.
The dubious argument in that landmark case was that if a suspect was
questioned by the police without being advised of his right to remain
silent, his Fifth Amendment right against self-incrimination was being
effectively violated. This ruling confused confessing to the police
with testifying in court. Nevertheless, the “Miranda warning” is
now standard police practice. It may be a nice idea, but it has no
basis in the U.S. Constitution.
Surprisingly, Chief Justice William Rehnquist, a long-time critic
of the Miranda ruling, wrote the majority opinion, noting that “Miranda has become embedded in routine police practice to the point where the
warnings have become part of our national culture.” Maybe so,
but that doesn’t make it a whit more constitutional. Rehnquist
seems to be saying that unraveling the Court’s error would be
more trouble than it’s worth. The Court can’t afford to
backtrack. It’s trapped by “structures of deceit.”
No, the Court isn’t infallible. It just doesn’t admit mistakes.
The result is that its mistakes become compounded over time, as they
serve as precedents for further mistakes. First the Court decides,
for example, that the First Amendment binds the states, though it expressly
binds “Congress”; then, that the states must observe a “wall
of separation” (a phrase that doesn’t occur in the Constitution)
between church and state; next, that public schools may not sponsor
prayer; and most recently, that students in public schools may not
lead voluntary prayers at football games. Every new application of
a false principle results in confusion worse confounded.
The Court is supposed to be the final arbiter of the rule of law;
instead it has become a bastion of arbitrary rule. Contrary to the
intention of the Constitution’s Framers, it represents not reason,
but will. It imposes its will, and calls the result constitutional
law. Then, in subsequent cases, it confuses its own constitutional
errors with the Constitution itself, creating the tangled skein that
is constitutional case law.
The question is not whether the police should advise suspects of their
rights, but whether the Constitution requires them to do so. It plainly
doesn’t, so the Court has had to offer hopelessly serpentine
opinions to disguise its policy preferences as constitutional mandates,
appealing not to the text of the Constitution but to nebulous “penumbras” and “emanations.”
Such reasoning is obviously arbitrary, since it isn’t applied
with any consistency. The Court has found infinitely elastic “penumbras” and “emanations” in
a few pet passages — in the First, Fourth, Fifth, and Fourteenth
Amendments, for example — but none in the passages it disfavors,
such as the Second and Tenth Amendments, which have become dead letters.
Dissenting in the current case, Justice Antonin Scalia notes that
the majority ruling doesn’t even pretend it’s based on
the Constitution. The majority is merely protecting the Court’s
previous errors by compounding them with a new one. The Court’s
prestige would suffer if it admitted having made a gross error in 1966.
The rule of law is supposed to be predictable. The Supreme Court is
anything but. The clearest proof that we live under the rule of men,
not law, is that the Court has become an oracle. If you want to guess
how it will rule in a given case, reading the Constitution will be
no help at all in anticipating its whims.
Copyright © 2011 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was published originally
by Griffin Internet Syndicate on June 27, 2000.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
Watch Sobran's last TV appearance on YouTube.
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during the FGF Tribute to Joe Sobran in December 2009.
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