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The Reactionary Utopian (classic)
June 20, 2011

Structures of Deceit
A classic by Joseph Sobran
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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 backtrack.

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 a Catholic.

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.

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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.

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