The Forgotten Amendment

Perhaps the better word would be "ignored." Inasmuch as the Constitution of the United States has been a dead letter for decades, we might reasonably conclude that the entire document, amendments and all, is forgotten, or ignored. But some parts of it are more forgotten than others!

The case of Larry Hiibel is relevant. Hiibel was convicted of refusing to identify himself to a police officer. Hiibel and his daughter had been arguing as they drove in his pickup truck. The argument grew heated, and Hiibel asked his daughter, who was driving, to pull over so he could step out and collect his thoughts, so to speak. He was standing by the truck when the officer arrived, having been told of an altercation taking place in the pickup. Asked to identify himself, Hiibel refused, asking why that was necessary. The cop replied that he was conducting an investigation. Investigating what? The policeman’s reply was nonsensical — he was investigating an investigation. Eventually the officer asked eleven times for Hiibel’s ID; and eleven times he refused. He was arrested on the spot and taken to jail. He sued, and the matter was ultimately resolved in the U.S. Supreme Court, which decided against Hiibel.

The Court’s opinion was written by Justice Kennedy, who began his (and the court’s) opinion thusly: "The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v Ohio (cite). He challenges his conviction under the Fourth and Fifth Amendments—." That was a mistake, in this non-lawyer’s opinion.

Although one of Hiibel’s attorneys considered the Fourth Amendment relevant to the case, that relevancy is not obvious. Being asked one’s identity is hardly a search and/or seizure. Nor is there anything unlawful about requesting a person’s identity. However, demanding a driver’s license, for example, of a person found standing smoking a cigarette beside a pickup truck stopped by the side of the road, is hardly a "reasonable" search. The Fourth Amendment, in this matter, may be a stretch, depending upon how "unreasonable search" is interpreted.

The Fifth is another matter. While that amendment does not, in fact, use the words "self-incrimination," it does guarantee the right not to witness against oneself. Is one witnessing against himself in refusing to give identification? I suppose one is a witness when he states who he is, but is such a statement against himself? A fine point for lawyers to wrangle over, but on the surface, at least, the Fifth seems rather remote, though perhaps not so remote as the Fourth.

When Hiibel was arrested and put in handcuffs, was he informed that he had the right to remain silent? If so, then the Fifth certainly enters the picture. "You have the right to remain silent" is pretty absolute. The interesting question is: when did the accused acquire that right? If rights are inherent in our very nature, then he always had it. To tell a person that he has the right to remain silent from the point of that pronouncement onward, when being taken into custody for being silent just prior to the pronouncement of his right to do so, is bizarre. One could reasonably ask, "If I can remain silent now, why are you arresting me for remaining silent a minute ago?" Police do not confer rights by announcing and acknowledging them!

I have always wondered why the First Amendment, the one I refer to as forgotten, is so seldom invoked. Of course, pornographers resort to it, and those who cast aspersions, but its import goes far beyond such applications. If one has the right to freedom of speech, and cannot be punished for exercising that right, then what if one wishes to communicate silence? Doesn’t freedom of speech include freedom from speech as well? The Supreme Court, in fact, had earlier ruled that under the First Amendment, an individual "should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State—." Apparently the Court forgot this when they ruled that Hiibel is not free to believe as he wills — namely, that he shouldn’t be required to identify himself—and that he may quite legitimately be coerced by the state into yielding that belief to the demands of the state. Of course, it is also true that Hiibel did not cite the First Amendment in his defense. Maybe that was a mistake.

Hiibel’s prosecutors gave a number of reasons why a person questioned by the police should identify himself. He might be the subject of outstanding warrants. He might be someone regarded as armed and dangerous. It is beneficial for the state, in the person of its agent, the policeman, to know this. But what about benefits—such as Constitutionally guaranteed rights— to the person stopped? Are public servants to be given privileges by law (demanding ID for what may be flimsy reasons) that outweigh the basic Constitutional rights of the sovereign citizen? In Hiibel’s case, the license plate on the pickup bore his name, "Hiibel." Quite possibly, then, the person in the truck was Hiibel!! In any event, was it Hiibel’s duty to make the policeman’s job easier?

Imagine what would happen if people realized that they had a right, which government exists to protect, to keep their mouths shut, regardless of any possible Fourth or Fifth Amendment issues! The Revolution would have arrived!

Dr. Hein [send him mail] is a retired ophthalmologist in St. Louis, and the author of All Work & No Pay.

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