A few people wrote to correct me that the Supreme Court has determined that the Fifth Amendment doesn’t apply to roadside breath tests.

Yes, I know. But that doesn’t mean the Court was correct. My citing the Fifth Amendment wasn’t an assessment of the curent status of the case law on the issue, but a reflection of my own interpretation of the Fifth Amendment. That is, imposing a greater punishment for refusing to take a breath test than the punishment for taking one and failing it does, in my opinion, turn the Fifth Amendment on its ear. And yes, I do consider a breath test to be a form of self-incrimination. You’re offering evidence that can be used against you. I think you ought to be able to refuse, or at the very least have an attorney present. I relize that most courts have ruled otherwise. I think they’re wrong.

I don’t know if this happens with other libertarians, but I get it a lot. For example, when I’ve written that Congress has no constitutional authority to pass a particular piece of legislation, I’ll inevitably get email from people attempting me to tutor me on every Commerce Clause (to give one example) case since Wickard v. Filburn. Well, yes. I know the history of Commerce Clause jurisprudence. I just happen to diagree with it.

I’m sure much of this is my fault — I should do a better job of articulating when I’m refering to what the law is, and when I’m offering my own assessment of what the law ought to be.

This entry was posted on Sunday, January 22nd, 2006 at 1:32 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.