Robert A. Burt


Are we, as Professor Seidman concludes, "bound to remain irresolute" in our understanding of the constitutional guarantee against self-incrimination because we are caught between two irreconcilable psychologies about self-determination? I don't think so.

If these two psychologies-"autonomous" versus "situated and intersubjective" accounts of preference formation, as Seidman puts it-are equally plausible, though mutually inconsistent, then we are inextricably caught. If one account is more accurate but not widely understood as such, then we are trapped in irresolution only if we fail to overcome ignorance. Seidman does not clearly indicate his choice between these two explanations for our current confusion. My choice is for the latter explanation- that the account of "autonomous" choice made by socially isolated actors is false. This account is, however, deeply rooted in conventional theorizing. Though erroneous, it persists for the same reasons that the "flat earth" theory seemed so attractive for so long: because it appears continuously confirmed by daily experience of apparently indisputable physical facts (my body and my mind are physically separated from others', just as the earth seems flat when I walk on it) and because alternative explanations have apparently fearful consequences (if my choices are not "mine" then I must be the slave of others who are making my choices for me; if the world is round then I must surely fall off).

Seidman's failure to consign the conventional account of autonomous choice to the discredited company of the "flat earth" theory has two unfortunate consequences: He misses opportunities to clarify the constitutional jurisprudence about self-incrimination; and he falls into errors in his own factual assertions about individual psychological functioning, errors that compound the confusions he means to dispel in his jurisprudence.