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Article

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“Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791-1903,” 77 Texas Law Review 825 (1999)

Abstract

In the past few years, criminal procedure scholars have fundamentally transformed our understanding of the history of the privilege against self-incrimination. In the whiggish treatment of an earlier generation, the history of the privilege appeared as the teleological progression of an indubitable principle derived from the experiences of English religious dissenters in the seventeenth century. Thanks to an outpouring of new scholarship, however, the story now appears to have been far more complex. The privilege against self-incrimination, it turns out, is not native to the common law at all; rather, it was borrowed from the European ius commune of the late Middle Ages and Renaissance. Moreover, we now know that as late as the end of the eighteenth century, no effective privilege against self-incrimination existed for the average common-law criminal defendant. Because criminal defendants were rarely represented by counsel, then a right to maintain silence during the course of the trial would have been, as John Langbein has shown, little more than a right not to defend oneself at all.

The revised history of the privilege has provided important new perspective on the place of the Fifth Amendment's Self-Incrimination Clause in American legal practice. Indeed, the Supreme Court has relied on this new scholarship to hold that the risk of foreign prosecution is beyond the scope of the Clause. Nonetheless, the new history of the privilege has yet to account for the history of the American privilege against self-incrimination in the first half-century of the Republic. As a result, a critically important issue remains poorly understood: How and when did American self-incrimination doctrine become constitutionalized? The answer to this question, of course, seems at first glance so obvious that few have thought even to ask the question at all. It seems rather straightforward that the self-incrimination clauses in most of the early state constitutions and in the federal Bill of Rights constitutionalized the principle that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Yet, as we shall see, the apparently simple language of the constitutional self-incrimination clauses belies a considerably more complicated history.

Date of Authorship for this Version

1999

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