During a judicial inquiry in a state court into alleged
professional misconduct of lawyers, petitioner, a lawyer, was
called to testify and produce records before the judge in charge of
the inquiry. Relying primarily on his state privilege against
self-incrimination, he refused to produce the required records and
to answer questions relating to his alleged professional
misconduct, and he persisted in such refusal after being warned
that it might result in "serious consequences" in the form of an
exercise of the court's disciplinary power over attorneys
practicing before it. Solely on the ground of such refusal to
cooperate in the court's efforts to expose unethical practices, and
without any independent proof of wrongdoing on his part, petitioner
was disbarred by the state court.
Held: disciplinary action did not violate petitioner's
rights under the Fourteenth Amendment. Pp.
366 U. S.
118-131.
(a) Disbarment of petitioner solely because of his refusal to
cooperate in the court's efforts to expose unethical conduct, and
without any independent evidence of wrongdoing on his part, was not
arbitrary or irrational, and it did not deprive him of liberty
without due process of law contrary to the Fourteenth Amendment.
Konigsberg v. State Bar, ante, p.
366 U. S. 36;
In re Anastaplo, ante, p
366 U. S. 82. Pp.
366 U. S.
123-125.
(b) A different conclusion is not required by the fact that
petitioner's refusal was based on a
bona fide assertion of
his state privilege against self-incrimination. Pp.
366 U. S.
125-127.
(c) The Fourteenth Amendment did not give petitioner a
federal constitutional right not to be required to
incriminate himself in the state proceedings. Pp.
366 U. S.
127-129.
(d) The State's action does not unconstitutionally discriminate
against lawyers as a class. Pp.
366 U.S. 129-131.
7 N.Y.2d 488, 166 N.E.2d 672, affirmed.
Page 366 U. S. 118
MR. JUSTICE HARLAN delivered the opinion of the Court.
We are called upon to decide whether the State of New York may,
consistently with the Fourteenth Amendment, disbar an attorney who,
relying on his state privilege against self-incrimination, has
refused to answer material questions of a duly authorized
investigating authority relating to alleged professional
misconduct. [
Footnote 1]
Page 366 U. S. 119
The issue arises in the context of the so-called Brooklyn
"ambulance chasing" Judicial Inquiry which this Court had before it
in
Anonymous Nos. 6 and 7 v. Baker, 360 U.
S. 287. The origins, authority, and nature of the
Inquiry have already been sufficiently described in our opinion in
that case. There need only be added here that the purpose of the
Inquiry, as reflected in the establishing order of the Appellate
Division of the Supreme Court of the State of New York, Second
Department, was twofold:
"to expose all the evil practices [involved in the improper
solicitation and handling of contingent retainers in personal
injury cases] with a view to enabling this court to adopt
appropriate measures to eliminate them and to discipline those
attorneys found to have engaged in them."
In re Cohen, 9 A.D.2d 436, 437, 195 N.Y.S.2d 990,
993.
For some years, the Second Department has had a court rule
"which requires that an attorney who makes contingent fee
agreements for his services in personal injury, wrongful death,
property damage, and certain other kinds of cases, must file such
agreements with the [Appellate Division], and, if he enters into
five or more such agreements in any year, must give to the court in
writing certain particulars as to how he came to be retained"
(called "Statements of Retainer"). 7 N.Y.2d 488, 493, 199
N.Y.S.2d 658, 660, 166 N.E.2d 672, 674,
see Rule 3 of the
Special Rules Regulating the Conduct of Attorneys and Counselors at
Law in the Second Judicial Department, Clevenger's Practice Manual,
p. 21-19 (1959). Principally as a result of the large number of
Statements of Retainer filed by him during recent years, petitioner
was called to testify and produce records before the Justice in
charge of the Inquiry. [
Footnote
2] Relying on his concededly
Page 366 U. S. 120
available state privilege against self-incrimination, petitioner
refused to produce the records called for, and to answer some sixty
other questions. The subject matter of such questions was
summarized by the New York Court of Appeals in its opinion in this
case (7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672,
674-675) as follows:
". . . Those unanswered questions related to the identity of his
law office partners, associates and employees, to his possession of
the records of the cases described in his statements of retainer,
to any destruction of such records, to his bank accounts, to his
paying police officers or others for referring claimants to him, to
his paying insurance company employees for referring cases to him,
and to his promising to pay to any 'lay person' 10% of recoveries
or settlements. He was asked -- and refused to answer -- as to
whether he had made or agreed to make such payments to any of
several named persons, as to whether he had hired or paid
nonlawyers to arrange settlements of his cases with insurance
companies, and as to whether his partner or associate Rothenberg
had been indicted for and had pleaded guilty to violations of
sections 270-a and 270-d of the Penal Law, which forbid the
solicitation of legal business or the employment by lawyers of such
solicitors. . . ."
After petitioner had refused to answer these questions, counsel
for the Inquiry warned him that "serious consequences," in the form
of an exercise of the Appellate Division's disciplinary power over
attorneys practicing before
Page 366 U. S. 121
it, [
Footnote 3] might flow
from his refusal to respond, even though that refusal was based on
a claim of privilege. As the basis for his warning, counsel
referred to various provisions of the Canons of Professional Ethics
[
Footnote 4] and of the New
York Penal Law. [
Footnote 5]
Petitioner was then given a further opportunity to respond to the
unanswered questions, but he declined, preferring to rely upon his
claim of privilege.
Thereafter the Justice in charge of the Inquiry recommended to
the Appellate Division that petitioner be disciplined. The
Appellate Division ordered respondent Hurley to file a petition for
disciplinary action. The ensuing petition sought petitioner's
disbarment, alleging as grounds therefor:
"The refusal of . . . Albert Martin Cohen, to produce the
records [called for by the Inquiry], and his refusal to answer the
questions [summarized above], are in disregard and in violation of
the inherent duty and obligation of respondent as a member of the
legal profession in that, among other things, such refusals are
contrary to the standards of candor and frankness that are required
and expected of a lawyer
Page 366 U. S. 122
to the Court; such refusals are in defiance of and flant
[
sic] the authority of the Court to inquire into and
elicit information within respondent's knowledge relating to this
conduct and practices as a lawyer; by his refusal to answer the
aforesaid questions, the respondent hindered and impeded the
Judicial Inquiry that was ordered by this Court; by his refusals,
respondent withheld vital information bearing upon his conduct,
character, fitness, integrity, trust and reliability as a member of
the legal profession. . . ."
The Appellate Division ordered petitioner disbarred, saying (9
A.D.2d at 448-449, 195 N.Y.S.2d at 1003):
"To avoid any possible doubt as to our position, we state again
that the basis for any disciplinary action by this court is not the
fact that respondent has invoked his constitutional privilege
against self-incrimination, but rather the fact that he has
deliberately refused to cooperate with the court in its efforts to
expose unethical practices and in its efforts to determine
incidentally whether he had committed any acts of professional
misconduct which destroyed the character and fitness required of
him as a condition to his retention of the privilege of remaining a
member of the Bar."
The New York Court of Appeals affirmed, Judge Fuld dissenting.
[
Footnote 6] 7 N.Y.2d 488, 199
N.Y.S.2d 658, 166 N.E.2d 672. We granted certiorari because the
case presented still another variant of the issues arising in the
Konigsberg and
Anastaplo cases,
ante,
pp.
366 U. S. 36,
366 U. S. 82.
Starting from the undeniably correct premise that a State may
not arbitrarily refuse a person permission to
Page 366 U. S. 123
practice law,
Konigsberg v. State Bar of California,
353 U. S. 252;
Schware v. Board of Bar Examiners, 353 U.
S. 232, petitioner's claim that New York's disbarment of
him was capricious rests essentially on two propositions: (1) that
the Fourteenth Amendment forbade the State from making his refusal
to answer the Inquiry's questions a
per se ground for
disbarment; (2) that, in any event, such a ground is not
permissible when refusal to answer rests on a bona fide claim of a
privilege against self-incrimination.
I
The first contention must be rejected largely in light of our
today's opinions in the
Konigsberg and
Anastaplo
cases. The fact that such refusal was here made a ground for
disbarment, rather than for denial of admission to the bar, as in
Konigsberg and
Anastaplo, is not of
constitutional moment. And there is no claim here either that the
unanswered questions were not material or that petitioner was not
duly warned of the consequences of his refusal to answer. By the
same token, those cases also dispose of petitioner's basically
similar contention that the State could proceed against him only by
way of independent evidence of wrongdoing on his part.
We do not think it can be seriously contended that New York's
judicial inquiry was so devoid of rational justification that the
mere act of compelling even unprivileged testimony was a
deprivation of petitioner's liberty without due process. History
and policy combine to establish the presence of a substantial state
interest in conducting an investigation of this kind. That interest
is nothing less than the exertion of disciplinary powers which
English and American courts (the former primarily through the Inns
of Court) have for centuries possessed over members of the bar,
incident to their broader responsibility for
Page 366 U. S. 124
keeping the administration of justice and the standards of
professional conduct unsullied. Not only is the practice of such
judicial investigations long established, but the subject matter of
the present investigation does not lack a rational basis. It is no
less true than trite that lawyers must operate in a three-fold
capacity, as self-employed businessmen as it were, as trusted
agents of their clients, and as assistants to the court in search
of a just solution to disputes. It is certainly not beyond the
realm of permissible state concerns to conclude that too much
attention to the business of getting clients may be incompatible
with a sufficient devotion to duties which a lawyer owes to the
court, or that the "payment of awards to persons bringing in legal
business" is inconsistent with the personally disinterested
position a lawyer should maintain.
Finally, it cannot by any stretch be considered that New York
acted arbitrarily or irrationally in applying the disciplinary
sanction of disbarment to the petitioner. What Mr. Justice Cardozo
(then Chief Judge of the New York Court of Appeals) said in the
Karlin case is enough to put an end to that
contention:
"If a barrister was suspected of misconduct, the benchers of his
inn might inquire of his behavior. We can hardly doubt that refusal
to answer would have been followed by expulsion. There was thus
little occasion for controversies as to discipline to be brought
before the judges, unless the benchers failed in the performance of
their duties. In case they did fail, a supervisory power was ever
in reserve. The inns . . . were subject . . . to visitation by the
judges. . . . Short shrift would there have been for the barrister
who refused to make answer as to his professional behavior in
defiance of the visitors."
248 N.Y. 465 at 472-473, 162 N.E. 487 at 490.
Page 366 U. S. 125
If more than long lived practice is thought necessary to justify
such a sanction, it is to be found in the fact that the denial of
continued access to a position that can be misused is permissible
to assure that the position may not be held without observance of
the obligations lawfully imposed upon it. Revocation of a license
for failure to fulfill similar obligations of a licensee is the
very sanction which the Federal Government has adopted in a number
of situations.
See 12 U.S.C. § 481, 47 U.S.C. §§ 308(b),
312(a)(4).
II
A different constitutional conclusion does not result from the
fact that petitioner's refusal was based on a good faith assertion
of his state privilege against self-incrimination. Because, from a
federal standpoint, there can be no doubt that a State has great
leeway in defining the reach of its own privilege against
self-incrimination, we regard the scope of federal review here as
being limited to the question whether arbitrary of discriminatory
state action can be found in the consequences New York has attached
to the exercise of the privilege in this instance.
Basic to consideration of this aspect of petitioner's case is
the fact that the State's disbarment order was predicated not upon
any unfavorable inference which it drew from petitioner's assertion
of the privilege,
cf. Slochower v. Board of Higher
Education, 350 U. S. 551,
350 U. S.
557-558;
Grunewald v. United States,
353 U. S. 391,
353 U. S. 421,
nor upon any purpose to penalize him for its exercise, but solely
upon his refusal to discharge obligations which, as a lawyer, he
owed to the court. The Court of Appeals stated:
"Of course, [petitioner] had the right to assert the privilege,
and to withhold the criminating answers. That right was his, as it
would be the right of any citizen, and it was not denied to him. He
could not
Page 366 U. S. 126
be forced to waive his immunity. . . . But the question still
remained as to whether he had broken the 'condition' on which
depended the 'privilege' of membership in the Bar. . . . 'Whenever
the condition is broken, the privilege is lost' (citing
Matter
of Rouss, 221 N.Y. 81, 84-85, 116 N.E. 782 at 782, Cardozo,
J.). Appellant, as a citizen, could not be denied any of the common
rights of citizens. But he stood before the inquiry and before the
Appellate Division in another quite different capacity, also. As a
lawyer, he was 'an officer of the court, and, like the court
itself, an instrument . . . of justice' (citing
People ex rel.
Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489,
Cardozo, J.), with the inevitable consequences that the court which
was charged with control and discipline of its officers had its own
right to demand his full, honest and loyal cooperation in its
investigations, and to strike his name from the rolls if he refused
to cooperate. Such 'cooperation' is a 'phrase without reality' as
Chief Judge Cardozo wrote in
People ex rel. Karlin v. Culkin,
supra, 248 N.Y. at 471, 162 N.E. at 489, if a lawyer after
refusing to answer pertinent questions about his professional
conduct can retain his status and privileges as an officer of the
court."
7 N.Y.2d at 495, 199 N.Y.S.2d at 662, 166 N.E.2d at 675.
We do not think that it can be seriously contended that the
unavailability of the state privilege in judicial inquiries of this
type amounts to a distinction from criminal prosecutions so
irrational as to suggest either a denial of due process or a
purposeful discrimination of the kind which violates the Equal
Protection Clause of the Fourteenth Amendment. A State may
rationally conclude that the consequence of disbarment is less
drastic than that of a prison term for contempt, albeit arguments
to the contrary can be made as well. It may also rationally
Page 366 U. S. 127
conclude that procedures resulting in greater preventive
certainty are warranted when what is involved is the right to
continue to occupy a position affording special opportunities for
deleterious conduct -- opportunities, indeed, created by the
State's original certification of the petitioner's merit. In this
regard, all that New York has, in effect, held is that petitioner,
by resort to a privilege against self-incrimination, can no more
claim a right not to be disbarred for his refusal to answer with
respect to matters within the competence of the Court's supervisory
powers over members of the bar, than could a trustee claim a right
not to be removed from office for failure to render accounts which
might incriminate him. Finally, where illegal or shady practices on
the part of some lawyers are suspected, New York could rationally
conclude that the profession itself need not be subjected to the
disrespect which would result from the publicity, delay, and
possible ineffectiveness in their exposure and eradication that
might follow could miscreants only be dealt with through ordinary
investigatory and prosecutorial processes. " If the house is to be
cleaned, it is for those who occupy and govern it, rather than for
strangers, to do the noisome work."
People ex rel. Karlin v. Culkin, 248 N.Y. 465, 480, 162
N.E. 487, 493 (Cardozo, J.).
These bases for affording a procedure in such judicial inquiries
different from that in criminal prosecutions are more than enough
to make wholly untenable a contention that there has here been a
denial either of due process or of equal protection.
Although what has already been said disposes of this case, we
take note, in conclusion, of two further considerations. First, it
is suggested that the Fourteenth Amendment gave petitioner a
federal constitutional right not to be required to
incriminate himself in the state proceedings (although, apart from
his claim of fundamental
Page 366 U. S. 128
unfairness, the petitioner himself does not so contend,
note 1 supra). That
proposition, however, was explicitly rejected by this Court, upon
the fullest consideration, more than fifty years ago,
Twining
v. New Jersey, 211 U. S. 78,
[
Footnote 7] and such has been
the position of the Court ever since. [
Footnote 8]
See Snyder v.
Massachusetts, 291
Page 366 U. S. 129
U.S. 97; [
Footnote 9]
Brown v. Mississippi, 297 U. S. 278,
297 U. S. 285;
Palko v. Connecticut, 302 U. S. 319,
302 U. S.
323-324;
Adamson v. California, 332 U. S.
46; [
Footnote 10]
Knapp v. Schweitzer, 357 U. S. 371,
357 U. S. 374.
This is not to say, of course, that State have free rein either in
the choice of means of forcing incriminatory testimony or in the
drawing of inferences from a refusal to testify on grounds of
possible self-incrimination, no matter how objectionable or
irrational. But these decisions do establish, at the very least,
that, to make out a violation of the Fourteenth Amendment,
something substantially more must be shown than that the state
procedures involved have a tendency to discourage the withholding
of self-incriminatory testimony.
It is, however, suggested that such additional factors are to be
found in New York's assertion of a power to grant a state privilege
against self-incrimination without including within its sweep
protection from disbarment of a lawyer who asserts this privilege
during a judicial inquiry into his professional conduct. It is said
that this gives rise to a pernicious doctrine whereby lawyers
"may be separated into a special group upon which special
burdens can be imposed even though such burdens are not and cannot
be placed upon other groups."
This argument wholly misconceives the issue and what the Court
has held respecting it. The issue is not, of course, whether
lawyers are entitled to due process of law in matters of this kind,
but, rather, what process is constitutionally due them in such
circumstances. We do
Page 366 U. S. 130
not hold that lawyers, because of their special status in
society, can therefore be deprived of constitutional rights assured
to others, but only, as in all cases of this kind, that what
procedures are fair, what state process is constitutionally due,
what distinctions are consistent with the right to equal
protection, all depend upon the particular situation presented, and
that history is surely relevant to these inquiries. [
Footnote 11] State banks may be subjected
to periodic examinations that would violate the rights of some
other kinds of business against unreasonable search and seizure.
Compare 12 U.S.C. § 481,
with Boyd v. United
States, 116 U. S. 616. A
state contractor can be deprived of even the rudiments of a hearing
on the issue of whether the state executive department is
contracting in accordance with applicable state law.
Cf.
Perkins v. Lukens Steel Co., 310 U. S. 113. The
"right" to judicial review of agency determinations can be taken
away from railroad employees in one situation, but
Page 366 U. S. 131
guaranteed to professional employees in other situations.
Compare Switchmen's Union of North America v. National
Mediation Board, 320 U. S. 297,
with Leedom v. Kyne, 358 U. S. 184. A
state employee need no longer be entrusted with government property
if he refuses to explain what has become of property with which he
is charged, though his refusal may be protected against a contempt
sanction by a state or federal privilege against
self-incrimination.
Cf. Lerner v. Casey, 357 U.
S. 468.
Clearly enough, factual distinctions are the determinative
consideration upon the question of what process is due in each of
these cases. Otherwise, making state procedures vary solely on the
basis of the given occupation would indeed be nothing less than a
denial of equal protection to bankers, contractors, railroad
employees, and government employees. On the basis of the factual
distinctions that we have mentioned above, we consider that a State
can constitutionally afford a different procedure -- the present
procedure -- in these judicial investigation from that in criminal
prosecutions.
Petitioner's disbarment is not constitutionally infirm, and the
Court of Appeals' order must be
Affirmed.
[
Footnote 1]
N.Y.Const. Art. I, § 6. While petitioner, at his appearance
before the investigating authority, also claimed a federal
privilege not to testify, in his later response to the petition
initiating disciplinary proceedings, he relied solely upon
"the privilege against self-incrimination guaranteed to all
persons, lawyers or laymen alike, under Article I Section 6 of the
New York State Constitution."
It is, of course, settled that a Fifth Amendment privilege was
not available to petitioner in the present case.
See, e.g.,
Knapp v. Schweitzer, 357 U. S. 371;
Lerner v. Casey, 357 U. S. 468,
357 U. S. 478.
Nor do we understand it to be contended that the Fourteenth
Amendment automatically precluded the State from exacting
petitioner's testimony and attaching consequences to his refusal to
respond.
Cf. Adamson v. California, 332 U. S.
46,
332 U. S. 54;
Palko v. Connecticut, 302 U. S. 319,
302 U. S.
323-324;
Twining v. New Jersey, 211 U. S.
78,
211 U. S.
110-114. We take the petitioner's position and the
remittitur of the Court of Appeals as presenting, under the
Fourteenth Amendment, only a broad claim of fundamental
unfairness.
[
Footnote 2]
The following quotation from the respondent's brief accurately
reflects the record:
"During the period 1954 to 1958, inclusive, pursuant to the
provisions of said Rule, petitioner, a specialist in negligence
cases, filed 228 statements as to retainer in his own name. In
addition, 76 such statements were filed in the firm name of Cohen
& Rothenberg, thus indicating that petitioner and his law firm
had been retained on a contingent basis in a total of 304
negligence cases in five years (R. 33-35). The inquiry therefore
deemed it advisable to call petitioner as one of its
witnesses."
[
Footnote 3]
Section 90 of the New York Judiciary Law.
[
Footnote 4]
". . . Canon 22 . . . requiring lawyers to be candid and frank
when before the court, Canons 28 and 29 forbidding the payment of
awards to persons bringing in legal business and requiring lawyers
knowing of such practices to inform the court thereof, Canon 34
outlawing division of fees except with other lawyers. . . ."
7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675.
Canons 29 and 34 of the New York Canons of Professional Ethics are
found in McKinney N.Y.Laws, Judiciary Law, pp. 774-775. Canons 22
and 28 are found in the 1959 "pocket part," at pp. 210-211. They
are similar in all respects to the correspondingly numbered Canons
of Professional Ethics of the American Bar Association.
[
Footnote 5]
N.Y.Pen.Law §§ 270-a, 270-c, 270-d, 276, "all relating to
soliciting and fee-splitting." 7 N.Y.2d 488, 494, 199 N.Y.S.2d 658,
661, 166 N.E.2d 672, 675.
[
Footnote 6]
Judge Fuld dissented on state constitutional grounds, reaching
no federal questions.
[
Footnote 7]
"Even if the historical meaning of due process of law and the
decisions of this court did not exclude the privilege from it, it
would be going far to rate it as an immutable principle of justice
which is the inalienable possession of every citizen of a free
government. Salutary as the principle may seem to the great
majority, it cannot be ranked with the right to hearing before
condemnation, the immunity from arbitrary power not acting by
general laws, and the inviolability of private property. The wisdom
of the exemption has never been universally assented to since the
days of Bentham; many doubt it today, and it is best defended not
as an unchangeable principle of universal justice, but as a law
proved by experience to be expedient.
See Wigmore, § 2251.
It has no place in the jurisprudence of civilized and free
countries outside the domain of the common law, and it is nowhere
observed among our own people in the search for truth outside the
administration of the law. It should, must, and will be rigidly
observed where it is secured by specific constitutional safeguards,
but there is nothing in it which gives it a sanctity above and
before constitutions themselves. Much might be said in favor of the
view that the privilege was guaranteed against state impairment as
a privilege and immunity of National citizenship, but, as has been
shown, the decisions of this court have foreclosed that view. There
seems to be no reason whatever, however, for straining the meaning
of due process of law to include this privilege within it, because,
perhaps, we may think it of great value. The States had guarded the
privilege to the satisfaction of their own people up to the
adoption of the Fourteenth Amendment. No reason is perceived why
they cannot continue to do so. The power of their people ought not
to be fettered, their sense of responsibility lessened, and their
capacity for sober and restrained self-government weakened, by
forced construction of the Federal Constitution. . . ."
211 U.S. at
211 U. S.
113-114.
[
Footnote 8]
Hence, if any "constitutional privilege against
self-incrimination" has here been made a "phrase without reality,"
it can only have been a state privilege which this Court does not
have jurisdiction to protect.
[
Footnote 9]
"The privilege against self-incrimination may be withdrawn and
the accused put upon the stand as a witness for the state." 291
U.S. at
291 U. S.
105.
[
Footnote 10]
"California follows Anglo-American legal tradition in excusing
defendants in criminal prosecutions from compulsory testimony. . .
. That is a matter of legal policy, and not because of the
requirements of due process under the Fourteenth Amendment."
332 U.S. at
332 U. S.
54-55.
[
Footnote 11]
Of course, it is not alone the early beginning of the practice
of judicial inquiry into attorney practices which is significant
upon the reasonableness of what transpired here. Rather, it is the
long life of that mode of procedure which bears upon that issue, in
much the same way that a strong consensus of views in the States is
relevant to a finding of fundamental unfairness. What is
significant is that the
practice we are now concerned with
has survived the centuries which have seen the fall of all those
iniquitous
standards of which we are reminded, and which,
incidentally, would be equally unconstitutional today if applied
after a full criminal-type investigation and trial. While
recognizing that the test was not exclusive, this Court stated many
years ago:
"First. What is due process of law may be ascertained by an
examination of those settled usages and modes of proceedings
existing in the common and statute law of England before the
emigration of our ancestors, and shown not to have been unsuited to
their civil and political condition by having been acted on by them
after the settlement of this country. This test was adopted by the
court, speaking through Mr Justice Curtis, in
Murray v. Hoboken Land
Co., 18 How. 272,
59 U. S.
280. . . ."
Twining v. New Jersey, supra, at
211 U. S.
100.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.
We are once again called upon to consider the constitutionality
of penalties imposed upon lawyers who refuse to testify before a
secret inquiry being conducted by the State of New York into
suspected unethical practices among members of the legal profession
in and around New York City. In
Anonymous v. Baker,
[
Footnote 2/1] a majority
Page 366 U. S. 132
of this Court upheld the power of New York to conduct such a
secret inquiry. Here, the majority upholds the disbarment of
petitioner, a New York lawyer for thirty-nine years, solely
because, in reliance upon an assertion of his constitutional
privilege against self-incrimination, he refused to testify before
that inquiry. The theory upon which this order of disbarment was
upheld by the New York Court of Appeals -- a theory which the
majority here embraces -- is that, although lawyers, as citizens,
have a constitutional right not to incriminate themselves, they
also have a special duty, as lawyers, to cooperate with the courts,
and that this "duty of cooperation" would become a
"'phrase without reality' . . . if a lawyer, after refusing to
answer pertinent question about his professional conduct, can
retain his status and privileges as an officer of the court.
[
Footnote 2/2]"
In my judgment, however, the majority is here approving a
practice that makes the constitutional privilege against
self-incrimination the "phrase without reality." [
Footnote 2/3]
Page 366 U. S. 133
This almost magical obliteration of the privilege against
self-incrimination represents a radical departure from the
previously established practice in the State of New York. For, as
pointed out in the dissent of Judge Fuld, the New York Court of
Appeals had earlier condemned an attempt to introduce precisely the
policy it here accepted, saying:
"'The constitutional privilege [not to incriminate one's self]
is a fundamental right, and a measure of duty; its exercise cannot
be a breach of duty to the court.' It follows that . . . the
present disciplinary proceeding instituted against the appellant,
wherein the single offense charged is his refusal to yield a
constitutional privilege, is unwarrantable. [
Footnote 2/4]"
In departing from its prior policy of fully protecting the
privilege against compelled self-incrimination guaranteed by both
the State and the Federal Constitutions, the New York court relied
heavily on several of this Court's recent cases. [
Footnote 2/5] Those cases, I regret to say, do
provide some support for New York's partial nullification of the
constitutional privilege against self-incrimination. For those
cases are a product of the recently emphasized constitutional
philosophy under which no constitutional right is safe from being
"balanced" out of existence whenever a majority of this Court
thinks that the interests of the State "weigh more" than the
particular constitutional guarantee involved. [
Footnote 2/6] The product of the "balancing"
Page 366 U. S. 134
here is the conclusion that the State's interest in disbarring
any lawyer suspected of "ambulance chasing" outweighs the value of
those provisions of our Bill of Rights and the New York
Constitution commanding government not to make people testify
against themselves. This is a very dubious conclusion, at least to
one like me, who believes that our Bill of Rights guarantees are
essential to individual liberty and that they state their own
values, leaving no room for courts to "weigh" them out of the
Constitution. [
Footnote 2/7] The
First Amendment freedoms have already suffered a tremendous
shrinkage from "balancing," [
Footnote
2/8] and here, the Fifth Amendment once again suffers from the
same process. [
Footnote 2/9] I
agree with MR. JUSTICE DOUGLAS that the order here under review is
in direct conflict with the mandate of the Fifth Amendment as made
controlling upon the States by the Fourteenth Amendment. [
Footnote 2/10]
Page 366 U. S. 135
In a less important area, I would be content to rest my dissent
upon the single ground that a State may not penalize any person for
invoking his constitutional privilege against self-incrimination.
But, as I see this case, it involves other constitutional problems
that go far beyond the privilege against self-incrimination --
problems that involve dangers which, though as yet largely peculiar
to the members of the legal profession, are so important that they
need to be discussed. And, as I understand the majority's opinion,
it disposes of those problems on a ground that, from the standpoint
of the legal profession, is the most far-reaching possible -- that
lawyers have fewer constitutional rights than others. It thus
places the stamp of approval upon a doctrine that, if permitted to
grow, as doctrines have a habit of doing, can go far toward
destroying the independence of the legal profession, and thus
toward rendering that profession largely incapable of performing
the very kinds of services for the public that most justify its
existence.
The unlimited reach of the doctrine being promulgated can best
be shown by analysis of the issue before us as that issue was posed
by the court below. In concluding that petitioner should be
disbarred for reliance upon the privilege against
self-incrimination, the New York Court of Appeals expressly
recognized the right of every citizen, under New York law, to
refuse to give self-incriminating testimony. "That right," the
court said, "was his [petitioner's] as it would be the right of any
citizen. . . ." But, the curt reasoned, petitioner was more
Page 366 U. S. 136
than an ordinary citizen. "[H]e stood before the inquiry and
before the Appellate Division in another quite different capacity,
also." [
Footnote 2/11] The
capacity referred to was petitioner's capacity as a lawyer. In that
"capacity," the court concluded, petitioner could not properly
avail himself of his rights as a citizen. Thus, it is clear that
the theory adopted by the court below and reaffirmed by the
majority here is that lawyers may be separated into a special group
upon which special burdens can be imposed, even though such burdens
are not and cannot be placed upon other groups. Lawyers are thus to
have their legal rights determined by something less than the "law
of the land" as it is accorded to other people.
In my judgment, the theory so casually but enthusiastically
adopted by the majority constitutes nothing less than a denial to
lawyers of both due process and equal protection of the laws as
guaranteed by the Fourteenth Amendment. For I have always believed
that those guarantees, taken together, mean at least as much as
Daniel Webster told this Court was meant by due process of law, or
the "law of the land," in his famous argument in the Dartmouth
College case:
"By the law of the land is most clearly intended the general
law. . . . The meaning is that every citizen shall hold his life,
liberty, property, and immunities under the protection of the
general rules which govern society. [
Footnote 2/12]"
I think it is clear that the opinion
Page 366 U. S. 137
of the majority in this case says unequivocally that lawyers may
not avail themselves of "the general rules which govern
society."
The majority recognizes, as indeed it must, that New York is
depriving lawyers, because they are lawyers, of the full benefit of
a constitutional privilege available to other people. But, instead
of reaching the natural and, I think, obvious conclusion that such
a singling out of one particular group [
Footnote 2/13] for special disabilities with regard to
the basic privileges of individuals is in direct conflict with the
Fourteenth Amendment, [
Footnote
2/14] it chooses to defend this patent discrimination against
lawyers on the theory that there are no protections guaranteed to
every man who, in the words of Magna Charta, is being "anywise
destroyed" by the Government. The "law of the land" is therefore,
in the view of the majority, an accordion-like protection that can
be withdrawn from any person or group of persons whenever the
Government might prefer "procedures resulting in greater preventive
certainty" if it can show some "reasonable" basis for that
Page 366 U. S. 138
preference. The majority then proceeds to find such a
"reasonable" basis on two grounds: first, that lawyers occupy a
high position in our society "affording special opportunities for
deleterious conduct," and can, by virtue of that position, be
compelled to forego rights that are accorded to other groups; and,
secondly, that the powers here exercised over petitioner by the
courts of New York are no different than those exercised over
lawyers by the courts of England several hundred years ago. In my
judgment, neither of these grounds provides the slightest
justification for the refusal of the State of New York to allow
lawyers to avail themselves of "the general rules which govern
society."
I heartily agree with the view expressed by the majority that
lawyers occupy an important position in our society, for I
recognize that they have a great deal to do with the
administration, the enforcement, the interpretation, and frequently
even with the making of the Constitution and the other laws that
govern us. But I do not agree with the majority that the importance
of their position in any way justifies a discrimination against
them with regard to their basic rights as individuals. Quite the
contrary, I would think that the important role that lawyers are
called upon to play in our society would make it all the more
imperative that they not be discriminated against with regard to
the basic freedoms that are designed to protect the individual
against the tyrannical exertion of governmental power. For, in my
judgment, one of the great purposes underlying the grant of those
freedoms was to give independence to those who must discharge
important public responsibilities. The legal profession, with
responsibilities as great as those placed upon any group in our
society, must have that independence. If it is denied them, they
are likely to become nothing more than parrots of the views of
whatever group wields governmental power at the moment. Wherever
that has happened in the
Page 366 U. S. 139
world, the lawyer, as properly so called and respected, has
ceased to perform the highest duty of his calling and has lost the
affection and even the respect of the people.
Nor do I believe, as the majority asserts, that the
discrimination here practiced is justified by virtue of the fact
that the courts of England have for centuries exercise disciplinary
powers
"over members of the bar, incident to their broader
responsibility for keeping the administration of justice and the
standards of professional conduct unsullied."
The rights of lawyers in this country are not, I hope, to be
limited to the rights that English rulers chose to accord to their
barristers hundreds of years ago. For it is certainly true that the
courts of England could have then, as the majority points out, made
"short shrift" of any barrister who refused to "cooperate" with the
King's courts. Indeed, those courts did sometimes make "short
shrift" of lawyers whose greatest crime was to dare to defend
unpopular causes. [
Footnote 2/15]
And, in much the same manner, these same courts were at this same
time using their "inherent" powers to make "short shrift" of juries
that returned the wrong verdict. [
Footnote 2/16] History, I think, records
Page 366 U. S. 140
that it was this willingness on the part of the courts of
England to make "short shrift" of unpopular and uncooperative
groups that led, first, to the colonization of this country, later,
to the war that won its independence, and, finally to the Bill of
Rights. [
Footnote 2/17]
When the Founders of this Nation drew up our Constitution, they
were uneasily aware of this English practice, both as it had
prevailed in that country and as it had been experienced in the
colonies prior to the Revolution. Particularly fresh in their minds
was the treatment that had been accorded the lawyers who had sought
to defend John Peter Zenger against a charge of seditious libel
before a royal court in New York in 1735. [
Footnote 2/18] These two
Page 366 U. S. 141
lawyers had been summarily disbarred by the judges presiding at
that trial for
"having presumed, (notwithstanding they were forewarned by the
Court of their displeasure, if they should do it) to sign, and
having actually signed, and put into court, Exceptions, in the name
of John Peter Zenger, thereby denying the legality of the judges
their commissions. . . . [
Footnote
2/19]"
It is to the lasting credit and renown of the colonial bar that
Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of
the judges, defended and brought about the acquittal of Zenger.
[
Footnote 2/20]
Unlike the majority today, however, the Founders were singularly
unimpressed by the long history of such English practices. They
drew up a Constitution with provisions that were intended to
preclude for all time in this country the practice of making "short
shrift" of anyone -- whether he be lawyer, doctor, plumber or
thief. Thus, it was provided that, in this country, the basic "law
of the land" must include, among others, freedom from bills of
attainder, from
ex post facto laws and from compulsory
self-incrimination, and rights to trial by jury after indictment by
grand jury and to assistance of counsel. [
Footnote 2/21] To make certain that these rights and
freedoms would be accorded equally to everyone, it was also
provided: "
No person shall . . . be deprived of life,
liberty, or property, without due process of law." [
Footnote 2/22] (Emphasis supplied.)
Page 366 U. S. 142
The majority is holding, however, that lawyers are not entitled
to the full sweep of due process protections because they had no
such protections against judges or their fellow lawyers in England.
But I see no reason why this generation of Americans should be
deprived of a part of its Bill of Rights on the basis of medieval
English practices that our Forefathers left England, fought a
revolution, and wrote a Constitution to get rid of. [
Footnote 2/23] This Court should say here
with respect to due process and self-incrimination what it said
with respect to the freedoms of speech and press in
Bridges v.
California:
"[T]o assume that English common law in this field became ours
is to deny the generally accepted historical belief that 'one of
the objects of the Revolution was to get rid of the English common
law on liberty of speech and of the press.' [
Footnote 2/24]"
Instead of applying the reasoning of the
Bridges case
to protect the right of lawyers to avail themselves of the
privilege against self-incrimination, the majority departs from
that reasoning in an opinion that threatens also to restrict the
freedoms of speech, press and association. For, in addition to the
bare holding that a lawyer may not avail
Page 366 U. S. 143
himself of the "law of the land" with respect to the privilege
against self-incrimination, the opinion carries the plain
implication that a lawyer is not to have the protection of the
First Amendment with regard to his private beliefs and associations
whenever his exercise of those freedoms might interfere with his
duty to "cooperate" with a judge. [
Footnote 2/25] It is, of course, possible that the
majority will allow this process to go no further -- that it will
not disturb the few remaining constitutional safeguards of the
lawyer's independence. But I find no such promise in the majority's
opinion. On the contrary, I find in that opinion a willingness to
give overriding effect to the lawyer's duty of "cooperation," even
to the destruction of constitutional safeguards, and I cannot know
how many constitutional safeguards would be sacrificed to this
doctrine. Could a lawyer who refused to "cooperate" now be
subjected to an unlawful search in an attempt to find evidence that
he is guilty of something that a judge might later find to
constitute "shady practices"? [
Footnote 2/26] Could the court peremptorily confine a
lawyer in jail for contempt until he agreed to "cooperate" with the
court by foregoing his privilege against self-incrimination -- or
renouncing his freedom of speech? [
Footnote 2/27] Or can American courts now emulate
Page 366 U. S. 144
the onetime practice of English courts of sending lawyers to
jail for the "crime" of publicly advocating the repeal of laws that
require people to incriminate themselves? [
Footnote 2/28] If the requirements of due process and
equal protection of the laws are observed, we know that the answers
to these questions would be no. But who knows how short "short
shrift" can get?
The majority says that some of the evil practices I have
referred to do not exist today, and that they would now be held
unconstitutional. The Court does not mean, of course, that the
people of this country have an "absolute" right not to be subjected
to such practices. [
Footnote
2/29] It means, rather, that a majority of this Court,
as
presently constituted, thinks that such practices are not
"justified on balance." But, only 10 years ago, a different
majority of this Court upheld summary imprisonment of the defense
counsel in
Dennis v. United States [
Footnote 2/30] on a record which indicated that the
primary reason for that imprisonment was the imputation to the
lawyers of what the trial judge conceived of as the unpatriotic and
treasonable designs of their clients. [
Footnote 2/31] Even more recently, a
Page 366 U. S. 145
bare 5-4 majority of this Court prevented the temporary
disbarment of a lawyer whose only "crime" lay in criticizing the
manner in which the federal courts conduct trials for sedition.
[
Footnote 2/32] And today, this
Court is upholding the refusal of two States to admit lawyers to
their respective Bars solely because those lawyers would not
renounce their rights under the First Amendment. [
Footnote 2/33] The sad truth is that the majority
is being unduly optimistic in thinking the practices I have
mentioned do not exist today. They may have been disguised by
description in different language but the practices themselves have
not changed.
It seems to me that the majority takes a fundamentally unsound
position when it endorses a practice based upon the artificial
notion that rights and privileges can be stripped from a man in his
capacity as a lawyer without affecting the rights and privileges of
that man as a man. It is beyond dispute that one of the important
ends served by the practice of law is that it provides a means of
livelihood for the lawyer and those dependent upon him for support.
That means of earning a livelihood is not one that has been
conferred upon the lawyer as a gift from the State. Quite the
contrary, it represents a substantial investment in time, money and
energy on the part of the person who prepares himself to go into
the legal profession. Moreover, even after a lawyer has been
admitted to practice, a further substantial investment must be made
to enable the lawyer to build up the sort of goodwill that lies at
the root of any successful practice. Young lawyers must and do take
on cases in which their ultimate fee is only a fraction of the real
value of the work they
Page 366 U. S. 146
put into the case in order to build up this sort of goodwill.
The lawyer's abilities, acquired through long and expensive
education, and the goodwill attached to his practice, acquired in
part through uncompensated services, are capital assets that belong
to the lawyer -- both as a lawyer and as a man, assuming that such
a conceptualistic distinction can be drawn.
These assets should be no more subject to confiscation than his
home or any other asset he may have acquired through his industry
and initiative. If they are used in violation of an already
existing, clear requirement of the law which pronounces as the
penalty for violation confiscation of the assets, and if the
violation is established in a proceeding in which all the
requirements of the "law of the land" are satisfied, that is one
thing. [
Footnote 2/34] But to
confiscate the earning capacity that represents a large part of a
lawyer's lifetime achievements on the theory that no such asset
exists is quite another. The theory that the practice of law is
nothing more than a privilege conferred by the State which it can
destroy whenever it
Page 366 U. S. 147
can assert a "reasonable" justification for doing so seems to me
to permit plain confiscation.
Even apart from the financial impact, the disbarment of a lawyer
cannot help but have a tremendous effect upon that lawyer as a man.
The dishonor occasioned by an official pronouncement that a man is
no longer fit to follow his chosen profession cannot well be
ignored. Such dishonor undoubtedly goes far toward destroying the
reputation of the man upon whom it is heaped in the community in
which he lives. And the suffering that results falls not only upon
the disbarred lawyer, but upon his family as well. Government
certainly should not be allowed to do this to a man without
according him the full benefit of the "law of the land," both
constitutional and statutory.
In view of all this, I can see no justification for the notion
that membership in the bar is a mere privilege conferred by the
State, and is therefore subject to withdrawal for the "breach" of
whatever vague and indefinite "duties" the courts and other lawyers
may see fit to impose on a case-by-case basis. [
Footnote 2/35] Nearly a century ago, an English
judge observed, correctly I think, that,
"short of those heavy consequences which would attach to the
greater and more heinous offences, I own I can conceive of no
jurisdiction more serious than that by which a man may be deprived
of his degree and status as a barrister, and which, in such a case
-- perhaps, after he has devoted the best years of his life to this
arduous profession -- deprives him of his position as a member of
the profession and throws him back upon the world to commence a new
career as best he may, stamped with dishonour and disgrace.
[
Footnote 2/36]
Page 366 U. S. 148
But that is precisely what is happening here on the basis of
nothing more than petitioner's 'failure to cooperate' with the
courts by reliance upon his constitutional privilege against
self-incrimination. A man who has devoted thirty-nine years of his
life to the practice of law and who, so far as this record shows,
has never failed to perform those services faithfully and honorably
is being dismissed from the profession in disgrace, and is having
his means of livelihood taken away from him at a point in his life
when it seems highly unlikely that he will be able to find an
adequate alternative means to support himself."
Quite differently from the majority, I think that the legal
profession not only can, but should, endure what the majority
refers to as the
"disrespect which would result from the publicity, delay, and
possible ineffectiveness in their exposure and eradication that
might follow could miscreants only be dealt with through
ordinary investigatory and prosecutorial processes."
(Emphasis supplied.) Indeed, I cannot understand how any man in
this country can assume that "publicity," "delay" and
"ineffectiveness" brought on by observance of due process of law
can ever be disrespectable. I am not at all certain, however, that
the legal profession can survive in any form worthy of the respect
we want it to have if its internal inter-group conflicts over
professional ethics [
Footnote
2/37] are not rigidly confined by just those "ordinary
investigatory and prosecutorial processes" which, though belittled
by the majority today, are enshrined in the concepts of equal
protection and due process. For if the legal profession can, with
the aid of those members of
Page 366 U. S. 149
the profession who have become judges, exclude any member it
wishes even though such exclusion could not be accomplished within
the limits of the same kind of due process that is accorded to
other people, how is any lawyer going to be able to take a position
or defend a cause that is likely to incur the displeasure of the
judges or whatever group of his fellow lawyers happens to have
authority over him? [
Footnote
2/38] The answer is that, in many cases, he is not going to be
able to take such a position or to defend such a cause and the
public will be deprived of just those legal services that, in the
past, have given lawyers their most
bona fide claim to
greatness.
It may be that petitioner has been guilty of some violation of
law which, if legally proved, would justify his disbarment. It is
only fair to say, however, that there is not one shred of evidence
in this record to show such a violation. And petitioner is entitled
to every presumption of innocence until and unless such a violation
has been charged and proved in a proceeding in which he, like other
citizens, is accorded the protection of all of the safeguards
guaranteed by the requirements of equal protection and due process
of law. This belief that lawyers, too, are entitled to due process
and equal protection of the laws will not, I hope, be regarded as
too new or too novel.
The great importance of observing due process of law, though to
some extent familiar to lawyers and laymen alike, is sometimes
difficult for laymen to understand. Courts have often had to rely
upon lawyers and their familiarity with the wisdom underlying these
processes
Page 366 U. S. 150
to explain the need for time-consuming procedures to impatient
laymen. Such impatience is understandable when it comes from laymen
-- but it is regrettable to find it in lawyers. T he respect for a
rule of law administered through due process of law is the very
hallmark of a lawyer -- without it, he cannot keep faith with his
profession.
[
Footnote 2/1]
360 U. S. 360 U.S.
287. The majority there held that witnesses before the inquiry
could constitutionally be deprived of a public hearing and the
assistance of counsel.
But cf. Chambers v. Florida,
309 U. S. 227,
309 U. S.
237:
"The determination to preserve an accused's right to procedural
due process sprang in large part from knowledge of the historical
truth that the rights and liberties of people accused of crime
could not be safely entrusted to secret inquisitorial
processes."
[
Footnote 2/2]
Matter of Cohen, 7 N.Y.2d 488, 495, 199 N.Y.S.2d 658,
662, 166 N.E.2d 672, 675.
[
Footnote 2/3]
In my judgment, petitioner's reliance upon his federal privilege
against self-incrimination under the Fifth and Fourteenth
Amendments is sufficiently shown by this whole record to require
the consideration of that question by this Court. As the majority
points out, petitioner expressly asserted that privilege before the
court conducting the inquiry. Since that time, it is true that he
has not always spelled out with meticulous specificity this
self-incrimination claim under the Fifth and Fourteenth Amendments,
but he has consistently and repeatedly urged that his disbarment
violates the Fourteenth Amendment. And the record shows throughout
that the whole controversy has hinged around the question of the
power of the State, under both the State and the Federal
Constitutions, to force him to answer the questions he had been
asked at the inquiry. Under these circumstances, I cannot allow to
pass unnoticed the violation which I think has occurred with
respect to petitioner's rights under the Fifth Amendment.
Cf.
Boynton v. Virginia, 364 U. S. 454,
364 U. S. 457.
While the Court seems to intimate an opposite view, its opinion
appears to me actually to pass upon this federal contention.
[
Footnote 2/4]
Matter of Grae, 282 N.Y. 428, 435, 26 N.E.2d 963,
967.
[
Footnote 2/5]
7 N.Y.2d at 496, 199 N.Y.S.2d at 663, 166 N.E.2d at 676. The
cases relied upon were:
Lerner v. Casey, 357 U.
S. 468.
Beilan v. Board of Education,
357 U. S. 399;
Nelson v. County of Los Angeles, 362 U. S.
1.
[
Footnote 2/6]
The majority has not even bothered expressly to "strike a
balance" in these cases, apparently on the theory that the value of
the privilege against self-incrimination is so small that it can be
"outweighed" by
any countervailing governmental interest.
See, e.g., Nelson v. County of Los Angeles, supra, at
362 U. S. 7-8:
"Nor do we think that this discharge is vitiated by any
deterrent effect that California's law might have had on Globe's
exercise of his federal claim of privilege. The State may
nevertheless legitimately predicate discharge on refusal to give
information touching on the field of security."
[
Footnote 2/7]
My views of this "balancing" process have been set out at length
in the companion cases,
Konigsberg v. State Bar of
California, decided today,
ante, p.
366 U. S. 56 at
366 U. S. 62-71,
366 U. S. 75,
and
In re Anastaplo, decided today,
ante, p.
366 U. S. 97, at
366 U. S.
109-113.
See also the opinion cited at note 10
in my dissenting opinion in
Konigsberg.
[
Footnote 2/8]
See, e.g., Wilkinson v. United States, 365 U.
S. 399;
Braden v. United States, 365 U.
S. 431;
Times Film Corp. v. City of Chicago,
365 U. S. 43;
Uphaus v. Wyman, 364 U. S. 388;
Barenblatt v. United States, 360 U.
S. 109;
Uphaus v. Wyman, 360 U. S.
72.
[
Footnote 2/9]
It is true that some inroads have already been made into the
Fifth Amendment, for both
Lerner v. Casey, supra, and
Nelson v. County of Los Angeles, supra, rested partly upon
a willingness of a majority of this Court to "balance" away the
full protection of that Amendment.
[
Footnote 2/10]
This conclusion is reached primarily on the basis of agreement
with the dissenting opinion of Mr. Justice Harlan in
Twining v.
New Jersey, 211 U. S. 78,
211 U. S.
114-127. But even if that case were rightly decided, it
would not provide support for the decision here. For the issue with
regard to the privilege against self-incrimination here is quite
different from the issue posed in the
Twining case. In
that case, the only question before the Court was whether comment
upon a defendant's failure to take the stand in his own defense was
constitutionally permissible.
[
Footnote 2/11]
7 N.Y.2d at 495, 199 N.Y.S.2d at 662, 166 N.E.2d at 675.
[
Footnote 2/12]
Dartmouth College v.
Woodward, 4 Wheat. 518, 581.
See also Vanzant
v. Waddel, 10 Tenn. 260, in which Judge Catron, later Mr.
Justice Catron, speaking for the Supreme Court of Tennessee,
observed:
"The right to life, liberty and property, of every individual,
must stand or fall by the same rule or law that governs every other
member of the body politic, or 'LAND,' under similar circumstances;
and every partial or private law, which directly proposes to
destroy or affect individual rights, or does the same thing by
affording remedies leading to similar consequences, is
unconstitutional and void."
Id. at 270. The views expressed by Webster and Judge
Catron go back at least as far as 1215 and Magna Charta, in which
it was provided:
"No free man shall be taken or imprisoned, or disseised, or
outlawed, or exiled, or anywise destroyed; nor shall we go upon him
nor send upon him, but by the lawful judgment of his peers or by
the law of the land."
[
Footnote 2/13]
I recognize, of course, that New York also singles out other
groups for special treatment with regard to certain constitutional
privileges.
See Barsky v. Board of Regents, 347 U.
S. 442. That practice, which I regard as also clearly
unconstitutional (
see my dissenting opinion in that case,
id., at
347 U. S.
456-467), does not affect the argument here. For
discrimination against one group cannot be justified on the ground
that it is also practiced against another.
[
Footnote 2/14]
Cf. Griffin v. Illinois, 351 U. S.
12. In that case, we said:
"In this tradition [the tradition of Magna Charta], our own
constitutional guaranties of due process and equal protection both
call for procedures in criminal trials which allow no invidious
discriminations between persons and different groups of
persons."
Id. at
351 U. S.
17.
[
Footnote 2/15]
The following excerpt from Hallam, The Constitutional History of
England, Vol. I (2d ed.) at 477, indicates the extent to which this
sort of thing was done in seventeenth-century England:
"Two puritans having been committed by the high-commission court
for refusing the oath
ex-officio employed Mr. Fuller, a
bencher of Gray's Inn, to move for their habeas corpus, which he
did on the ground that the high commissioners were not empowered to
commit any of his majesty's subjects to prison. This being reckoned
a heinous offence, he was himself committed at Bancroft's
instigation, (whether by the king's personal warrant, or that of
the council board, does not appear) and lay in gaol to the day of
his death. . . ."
[
Footnote 2/16]
Hallam,
op. cit., supra, 366
U.S. 117fn2/15|>n. 15 at 316, makes the following
observation with regard to the duty of cooperation imposed upon
English juries:
"There is no room for wonder at any verdict that could be
returned by a jury when we consider what means the government
possessed of securing it. The sheriff returned a panel either
according to express directions, of which we have proofs, or to
what he judged himself of the crown's intention and interest. If a
verdict had gone against the prosecution in a matter of moment, the
jurors must have laid their account with appearing before the star
chamber; lucky, if they should escape, on humble retractation, with
sharp words, instead of enormous fines and indefinite
imprisonment."
[
Footnote 2/17]
Judge Catron expressed the same point in
Vanzant v. Waddel,
supra:
"The idea of a people through their representatives, making laws
whereby are swept away the life, liberty and property of one or few
citizens, by which neither the representatives nor their other
constituents are willing to be bound, is too odious to be tolerated
in any government where freedom has a name. Such abuses resulted in
the adoption of Magna Charta in England, securing the subject
against odious exceptions, which is and for centuries has been the
foundation of English liberty. Its infraction was a leading cause
why we separated from that country, and its value as a fundamental
rule for the protection of the citizen against legislative
usurpation, was the reason of its adoption as part of our
constitution."
10 Tenn. at 270-271.
[
Footnote 2/18]
See the Trial of John Peter Zenger, 17 Howell's State
Trials 675. Zenger, a newspaper publisher, had seen fit to
criticize the government, and was being tried for printing
"many things derogatory of the dignity of his majesty's
government, reflecting upon the legislature, upon the most
considerable persons in the most distinguished stations in the
province, and tending to raise seditions and tumults among the
people thereof."
Id. at 678.
[
Footnote 2/19]
Id. at 686-687. The judges there preferred the label of
"contempt" to that of "failure to cooperate."
[
Footnote 2/20]
See Dictionary of American Biography, Vol. XX at
648-649, for the story of Hamilton's successful defense of
Zenger.
[
Footnote 2/21]
Cf. Chambers v. Florida, 309 U.
S. 227,
309 U. S.
235-241, especially at
309 U. S. 237,
note 10.
[
Footnote 2/22]
That command, of course, originally applied only to the Federal
Government.
Barron v.
Baltimore, 7 Pet. 243. But, with the adoption in
1868 of the Fourteenth Amendment, the same command, together with
the related requirement of equal protection of the laws, became
binding upon the States.
[
Footnote 2/23]
The majority asserts that it is not only "the early beginning of
the practice of judicial inquiry into attorney practices . . . ,
[but also] the long life of that mode of procedure" that justifies
its decision here. This argument -- that constitutional rights are
to be determined by longstanding practices, rather than the words
of the Constitution -- is not, as the majority points out, a new
one. It lay at the basis of two of this Court's more renowned
decisions --
Dred Scott v.
Sandford, 19 How. 393, and
Plessy v.
Ferguson, 163 U. S. 537.
But cf. Brown v. Board of Education, 347 U.
S. 483. The notion that a violation of the plain
language of the Constitution can gain legal statute by long
continued practice is not one I can subscribe to. A majority group,
as de Tocqueville observed, too often "claims the right not only of
making the laws, but of breaking the laws it has made." De
Tocqueville, Democracy in America, Vol. 1 at 261.
[
Footnote 2/24]
314 U. S. 314 U.S.
252,
314 U. S.
264.
[
Footnote 2/25]
This implication stems from the majority's reliance upon its
opinions in the companion cases,
Konigsberg v. State Bar of
California, ante, p.
366 U. S. 36, and
In re Anastaplo, ante, p.
366 U. S. 82. If,
as the majority says, there is no constitutional difference between
admission and disbarment proceedings, it seems clear that lawyers
may now be called in by a State and forced to disclose their
political associations on a penalty of disbarment if they refuse to
do so.
[
Footnote 2/26]
The same point was persuasively urged by Mr. Justice Floyd of
the Florida Supreme Court in a concurring opinion where that court
refused to adopt the rule adopted by the New York court in this
case.
See Sheiner v. State, 82 So.
2d 657, 664.
[
Footnote 2/27]
As shown in notes
366
U.S. 117fn2/15|>15 and
366
U.S. 117fn2/16|>16,
supra, the same arguments used
to justify the decision in this case would also be applicable to
the supposed case, for it certainly cannot be denied that such a
practice had the "sanction" of English history.
[
Footnote 2/28]
Hallam,
op. cit., supra, 366
U.S. 117fn2/15|>n. 15 at 287, reports the following event in
early seventeenth-century England:
"The oath
ex officio, binding the taker to answer all
questions that should be put to him, inasmuch as it contravened the
generous maxim of English law that no one is obliged to criminate
himself, provoked very just animadversion. Morice, attorney of the
court of wards, not only attacked its legality with arguments of no
slight force, but introduced a bill to take it away. This was, on
the whole, well received by the house, and sir Francis Knollys, the
staunch enemy of episcopacy, though in high office, spoke in its
favour. But the Queen put a stop to the proceeding, and Morice lay
some time in prison for his boldness."
[
Footnote 2/29]
This much is made indisputably clear in the majority opinion in
Konigsberg v. State Bar of California, supra, at
366 U. S.
49-51.
[
Footnote 2/30]
341 U. S. 341 U.S.
494.
[
Footnote 2/31]
See Sacher v. United States, 343 U. S.
1,
343 U. S. 19
(dissenting opinion). In my judgment the
Sacher case is
not altogether unlike the case of the lawyer Fuller discussed in
366
U.S. 117fn2/15|>n. 15,
supra.
[
Footnote 2/32]
In re Sawyer, 360 U. S. 622.
Cf. Trial of John Peter Zenger,
supra.
[
Footnote 2/33]
Konigsberg v. State Bar of California, supra; In re
Anastaplo, supra. The pressures being brought upon Konigsberg
and Anastaplo are subtler than those brought upon such people as
Morice (
see 366
U.S. 117fn2/28|>note 28), but they are no less real.
[
Footnote 2/34]
Thus, I am in complete agreement with the majority that, on a
constitutional level,
"[i]t is certainly not beyond the realm of permissible state
concerns to conclude that too much attention to the business of
getting clients may be incompatible with a sufficient devotion to
duties which a lawyer owes to the court, or that the 'payment of
awards to persons bringing in legal business' is inconsistent with
the personally disinterested position a lawyer should
maintain."
But that state concern in preventing "ambulance chasing" is
certainly no greater than the state concern in preventing any other
activity which it has seen fit to make a crime. Suspected
"ambulance chasers" should be no more subject to the deprivation of
due process and equal protection that stems from "procedures
resulting in greater preventive certainty" than are suspected
murderers. Indeed, it seems to me that, if the question is to be
decided on the basis of "state concern," there is no more
justification for applying such summary procedures to "ambulance
chasing" than for applying them to any other variety of crime.
[
Footnote 2/35]
Cf. Barsky v. Board of Regents, supra, at
347 U. S. 459,
347 U. S.
472-474 (dissenting opinions).
[
Footnote 2/36]
Hudson v. Slade, 3 Foster and Finlason (Q.B.) 390,
411.
[
Footnote 2/37]
The true nature of the underlying controversy in this case, as a
controversy between economically competing groups of lawyers, is
shown by the fact that four different associations of attorneys
filed briefs as
amici curiae in the present proceeding --
two favorable to petitioner and two favorable to respondent.
[
Footnote 2/38]
The immense danger of departures from due process to lawyers who
represent unpopular causes is dramatically illustrated in
Sacher v. United States, supra. Cf. United States ex
rel. Goldsby v. Harpole, 263 F.2d 71, 82, for a discussion of
another situation in which the independence of the lawyer may be
crucial to his ability adequately to defend his client.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
The privilege against self-incrimination contained in the Fifth
Amendment has an honorable history, and should not be downgraded as
it is today. Levi Lincoln, Attorney General, objected in the
hearing of
Marbury v.
Madison, 1 Cranch 137, 144, to answering certain
questions on the ground that the answers might tend to criminate
him. [
Footnote 3/1]
See
Warren, The Supreme Court in United States History (1937), Vol. I,
p. 237. The Court, then headed by Chief Justice Marshall, respected
the privilege. [
Footnote 3/2]
Neither he nor any Justice even intimated that it was improper for
a lawyer to invoke his constitutional rights. They knew that the
Fifth Amendment was designed to protect the
Page 366 U. S. 151
innocent as well as the guilty. What the Court did that day
reflected the attitude expressed by the Court in 1956 in
Slochower v. Board of Education, 350 U.
S. 551,
350 U. S.
557-558, when we said,
"The privilege against self-incrimination would be reduced to a
hollow mockery if its exercise could be taken as equivalent either
to a confession of guilt or a conclusive presumption of perjury. .
. . The privilege serves to protect the innocent who otherwise
might be ensnared by ambiguous circumstances."
The lawyer in this case is in the same need of that protection
as was the Attorney General in
Marbury v. Madison and the
professor in the
Slochower case.
The American philosophy of the Fifth Amendment was dynamically
stated by President Andrew Jackson, who replied as follows to a
House Committee investigating the spoils system:
"[Y]ou request myself and the heads of the departments to become
our own accusers, and to furnish the evidence to convict
ourselves."
H.R.Rep.No.194, 24th Cong., 2d Sess., p. 31.
President Grant took long absences from Washington, D.C., for
recreational purposes. A House resolution asked Grant to list all
his executive acts since his election which had been "performed at
a distance from the seat of government established by law,"
together with an explanation of the necessity "for such
performance." Grant declined, stating that, if the information was
wanted for purposes of impeachment,
". . . it is asked in derogation of an inherent natural right,
recognized in this country by a constitutional guarantee which
protects every citizen, the President as well as the humblest in
the land, from being made a witness against himself."
4 Cong.Rec., Pt. 3, 44th Cong., 1st Sess., p. 2999; H.Jour.,
44th Cong., 1st Sess., p. 917.
Page 366 U. S. 152
A faithful account of the Fifth Amendment was given by Simon H.
Rifkind, formerly a federal judge in the Southern District of New
York who served with distinction from 1941 to 1950. He said in an
address on May 3, 1954: [
Footnote
3/3]
"Far and wide, currency has been given to what I regard as the
mischievous doctrine, the unconstitutional and historically false
doctrine, that the plea of the Fifth Amendment is an admission of
guilt, an act of subversion, a badge of disloyalty."
"I confess that, when I hear the words 'Fifth Amendment
Communist' spoken, I experience a sense of revulsion. In that
phrase, I detect a denial of seven centuries of civilizing growth
in our law, a repudiation of that high regard for human dignity
which is the proud hallmark of our law. That phrase makes a mockery
of a practice of every court in our land -- a practice which is so
well accepted that we take it for granted: has any of you ever seen
a prosecutor call a defendant to the witness stand? Of course not;
you are shocked, I hope at the suggestion. A defendant takes the
stand only of his own free will. Nor do we speak of 'Fifth
Amendment burglars,' 'Fifth Amendment traffic violators,' or 'Fifth
Amendment antitrust law violators.' Nor, for that matter, would I
speak of 'Fifth and Sixth Amendment Senators.' But I do seem to
recall that, when the actions of a Senator recently came under
investigation, he hastened to insure that he would have the right
to confront and cross-examine has accusers. He demanded that a
statement of the charges be made available to him, and he insisted
that he be allowed
Page 366 U. S. 153
to compel the attendance of witnesses in his own behalf."
"This is not the time to go into the hoary history of the Fifth
Amendment, but this much is clear: the privilege to remain silent
was regarded by our ancestors as the inalienable right of a free
man. To compel a man to accuse himself was regarded as a cruelty
beneath the tolerance of civilized people, and it simply is not
true as a matter of law that only the guilty are privileged to
plead the Fifth Amendment. The innocent, too, have frequent
occasion to seek its beneficent protection."
There is no exception in the Fifth Amendment for lawyers, any
more than there is for professors, Presidents, or other office
holders.
I believe that the States are obligated by the Due Process
Clause of the Fourteenth Amendment to accord the full reach of the
privilege to a person who invokes it.
See Adamson v.
California, 332 U. S. 46,
332 U. S. 68
(dissenting opinion);
Scott v. California, 364 U.
S. 471 (dissenting opinion) -- a position which MR.
JUSTICE BRENNAN today strengthens and reaffirms. In the disbarment
proceedings, petitioner relied not only on the state constitution,
but on the Due Process Clause of the Fourteenth Amendment,
contending that it forbade the State's making his silence the basis
for his disbarment. I agree with that view. Moreover, apart from
the Fifth Amendment, I do not think that a State may require
self-immolation as a condition of retaining the license of an
attorney. When a State uses petitioner's silence to brand him as
one who has not fulfilled his "inherent duty and obligation . . .
as a member of the legal profession," it adopts a procedure that
does not meet the requirements of due process. Taking away a man's
right to practice law is imposing a
Page 366 U. S. 154
penalty as severe as a criminal sanction, perhaps more so. The
State should carry the burden of proving guilt. The short-cut
sanctioned today allows proof of guilt to be "less than
negligible."
Grunewald v. United States, 353 U.
S. 391,
353 U. S.
424.
[
Footnote 3/1]
As reported in The Aurora for February 15, 1803, Levi Lincoln
stated to the Court
"[t]hat, if the court should, upon the questions being submitted
in writing, determine that he was bound to answer them, another
difficulty would suggest itself upon the principles of evidence; he
would suppose the case to assume its most serious form if, in the
course of his official duty, these commissions should have come
into his hands, and that he might either by error or by intention
have done wrong, it would not be expected that he should give
evidence to criminate himself. This was an extreme case, and he
used only to impress upon the court the nature of the principle in
the strongest terms."
[
Footnote 3/2]
The Court, as reported in 1 Cranch at 144, said that the
Attorney General was not obliged "to state anything which would
criminate himself."
[
Footnote 3/3]
Rifkind, Reflections on Civil Liberties (American Jewish
Committee), pp. 12-13.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE joins,
dissenting.
I would reverse, because I think that the petitioner was
protected by the immunity from compulsory self-incrimination
guaranteed by the Fifth Amendment, which, in my view, is absorbed
by the Fourteenth Amendment, and therefore is secured against
impairment by the States.
In
Barron v.
Baltimore, 7 Pet. 243, decided in 1833, the Court
held that it was without jurisdiction to review a judgment of the
Maryland Court of Appeals which denied an owner compensation for
his private property taken for public use. Chief Justice Marshall
wrote that, contrary to the contention of the owner,
"the provision in the Fifth Amendment to the Constitution
declaring that private property shall not be taken for public use
without just compensation is intended solely as a limitation on the
exercise of power by the Government of the United States, and is
not applicable to the legislation of the States."
This, he said, was because the first eight Amendments "contain
no expression indicating an intention to apply them to the state
governments. This Court cannot so apply them."
7 Pet. at
32 U. S.
250-251. For over a quarter of a century after the
adoption of the Fourteenth Amendment in 1868, this holding was
influential in many decisions of the Court which rejected arguments
for the application to the States of one after another of the
specific guarantees included in the Federal Bill of Rights.
See
Knapp v. Schweitzer, 357 U. S. 371,
357 U. S.
378-379, note 5, where the cases are collected.
Page 366 U. S. 155
In 1897, however, the Court decided
Chicago, B. & Q. R.
Co. v. Chicago, 166 U. S. 226.
That case also challenged the constitutionality of a judgment of a
State Supreme Court, that of Illinois, alleged to have sustained a
taking of private property for public purposes without just
compensation. But the property owner could now invoke the
Fourteenth Amendment against the State. The Court held that the
claim based on that Amendment was cognizable by the Court. On the
merits, the first Mr. Justice Harlan wrote,
"In our opinion, a judgment of a state court, even if it be
authorized by statute, whereby private property is taken for the
state or under its direction for public use, without compensation
made or secured to the owner, is, upon principle and authority,
wanting in the due process of law required by the Fourteenth
Amendment of the Constitution of the United States, and the
affirmance of such judgment by the highest court of the State is a
denial by that State of a right secured to the owner by that
instrument."
166 U.S. at
166 U. S. 241.
Thus, the Court, in fact if not in terms, applied the Fifth
Amendment's just compensation requirement to the States, finding in
the Fourteenth Amendment a basis which Chief Justice Marshall, in
Barron, found lacking elsewhere in the Constitution.
But if suitors in state cases who invoked the protection of
individual guarantees of the Bill of Rights were no longer to be
turned away by the Court with Marshall's summary "This Court cannot
so apply them," neither was the Court to give encouragement that
all specifics in the federal list would be applied as was the Just
Compensation Clause. Although there were Justices as early as 1892,
see O'Neil v. Vermont, 144 U. S. 323,
144 U. S. 337,
144 U. S. 366
(dissenting opinions), as there are Justices today,
see
dissent of MR. JUSTICE DOUGLAS herein and
Adamson v.
California, 332 U. S. 46,
332 U. S. 68
(dissenting opinion), urging the view that the Fourteenth Amendment
carried over intact the
Page 366 U. S. 156
first eight Amendments as limitations on the States, the course
of decisions has not so far followed that view. Additional specific
guarantees have, however, been applied to the States. For example,
while, as recently as 1922,
Prudential Ins. Co. v. Cheek,
259 U. S. 530,
259 U. S. 543,
the Court had said that the Fourteenth Amendment did not make the
protections of the First Amendment binding on the States, decisions
since 1925 have extended against state power the full panoply of
the First Amendment's protections for religion, speech, press,
assembly, and petition.
See, e.g., Gitlow v. New York,
268 U. S. 652,
268 U. S. 666;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 303;
West Virginia State Board of Education v. Barnette,
319 U. S. 624;
Near v. Minnesota ex rel. Olson, 283 U.
S. 697,
283 U. S. 707;
DeJonge v. Oregon, 299 U. S. 353,
299 U. S. 364;
Bridges v. California, 314 U. S. 252,
314 U. S. 277.
The view occasionally expressed that the freedom of speech and the
press may be secured by the Fourteenth Amendment less broadly than
it is secured by the First,
see Beauharnais v. Illinois,
343 U. S. 250,
343 U. S. 288
(dissenting opinion);
Roth v. United States, 354 U.
S. 476,
354 U. S.
505-506 (separate opinion);
Smith v.
California, 361 U. S. 147,
361 U. S. 169
(separate opinion), has never persuaded even a substantial minority
of the Court. Again, after saying in 1914 that
"the 4th Amendment is not directed to individual misconduct of
[state] officials. Its limitations reach the Federal government and
its agencies,"
Weeks v. United States, 232 U.
S. 383,
232 U. S. 398,
the Court held in 1949 that
"[t]he security of one's privacy against arbitrary intrusion by
the police . . . is . . . implicit in 'the concept of ordered
liberty,' and, as such, enforceable against the States. . . ."
Wolf v. Colorado, 338 U. S. 25,
338 U. S. 27-28;
and see Elkins v. United States, 364 U.
S. 206.
This application of specific guarantees to the States has been
attended by denials that this is what in fact is being done. The
insistence has been that the application
Page 366 U. S. 157
to the States of a safeguard embodied in the first eight
Amendments is not made
"because those rights are enumerated in the first eight
Amendments, but because they are of such a nature that they are
included in the conception of due process of law."
Twining v. New Jersey, 211 U. S.
78,
211 U. S. 99. In
other words, due process is said to be infused with "an independent
potency" not resting upon the Bill of Rights,
Adamson v.
California, 332 U. S. 46,
332 U. S. 66
(concurring opinion). It is strange that the Court should not have
been able to detect this characteristic in a single specific when
it rejected the application to the States of virtually every one of
them in the three decades following the adoption of the Fourteenth
Amendment. Since
"[f]ew phrases of the law are so elusive of exact apprehension
as . . . [due process of law] . . . , [and] . . . its full meaning
should be gradually ascertained by the process of inclusion and
exclusion in the course of the decisions of cases as they
arise,"
Twining v. New Jersey, supra, at
211 U. S.
99-100, this formulation has been a convenient device
for leaving the Court free to select for application to the States
some of the rights specifically mentioned in the first eight
Amendments, and to reject others. But surely it blinks reality to
pretend that the specific selected for application is not really
being applied. Mr. Justice Cardozo more accurately and frankly
described what happens when he said in
Palko v.
Connecticut, 302 U. S. 319,
302 U. S. 326,
that guarantees selected by the Court
"have been taken over from the earlier articles of the Federal
Bill of Rights and brought within the Fourteenth Amendment by a
process of absorption. . . ."
(Italics supplied.)
Many have had difficulty in seeing what justifies the
incorporation into the Fourteenth Amendment of the First and Fourth
Amendments which would not similarly justify the incorporation of
the other six. Even if I assume, however, that, at least as to some
guarantees,
Page 366 U. S. 158
there are considerations of federalism -- derived from our
tradition of the autonomy of the States in the exercise of powers
concerning the lives, liberty, and property of state citizens --
which should overbear the weighty arguments in favor of their
application to the States, I cannot follow the logic which applies
a particular specific for some purposes and denies its application
for others. If we accept the standards which justify the
application of a specific, namely, that it is "of the very essence
of a scheme of ordered liberty,"
Palko v. Connecticut,
supra, at
302 U. S. 325,
or is included among "those fundamental principles of liberty and
justice which lie at the base of all our civil and political
institutions,"
Hurtado v. California, 110 U.
S. 516,
110 U. S. 535,
or is among those personal immunities "so rooted in the traditions
and conscience of our people as to be ranked as fundamental,"
Snyder v. Massachusetts, 291 U. S. 97,
291 U. S. 105,
surely only impermissible subjective judgments can explain stopping
short of the incorporation of the full sweep of the specific being
absorbed. For example, since the Fourteenth Amendment absorbs in
capital cases the Sixth Amendment's requirement that an accused
shall have the assistance of counsel for his defense,
Powell v.
Alabama, 287 U. S. 45, I
cannot see how a different or greater interference with a State's
system of administering justice is involved in applying the same
guarantee in noncapital cases. Yet our decisions have limited the
absorption of the guarantee to such noncapital cases as on their
particular facts "render criminal proceedings without counsel so
apt to result in injustice as to be fundamentally unfair. . . ."
Uveges v. Pennsylvania, 335 U. S. 437,
335 U. S. 441;
see also Betts v. Brady, 316 U. S. 455.
But see McNeal v. Culver, 365 U.
S. 109,
365 U. S. 117
(concurring opinion). This makes of the process of absorption
"a license to the judiciary to administer a watered-down,
subjective version of the individual guarantees of the Bill of
Rights when state cases come before
Page 366 U. S. 159
us,"
which, I said in
Ohio ex rel. Eaton v. Price,
364 U. S. 263,
364 U. S. 275
(dissenting opinion), I believe to be indefensible.
The case before us presents, for me, another situation in which
the application of the full sweep of a specific is denied, although
the Court has held that its restraints are absorbed in the
Fourteenth Amendment for some purposes. Only this Term, we applied,
admittedly not in terms, but nevertheless in fact, the privilege
against compulsory self-incrimination guaranteed by the Fifth
Amendment to invalidate a state conviction obtained with the aid of
a confession, however true, which was secured from the accused by
duress or coercion.
Rogers v. Richmond, 365 U.
S. 534;
and see Bram v. United States,
168 U. S. 532.
And, not too long ago, we invalidated a state conviction for
illegal possession of morphine based on evidence of two capsules
which the accused had swallowed and then had been forced by the
police to disgorge,
Rochin v. California, 342 U.
S. 165. But the Court today relies upon earlier
statements that the immunity from compulsory self-incrimination is
not secured by the Fourteenth Amendment against impairment by the
States. These statements appear primarily in
Twining v. New
Jersey, supra, and
Adamson v. California, supra.
Those cases do not require the conclusion reached here. Neither
involved the question here presented of the constitutionality of a
penalty visited by a State upon a citizen for invoking the
privilege. Both involved only the much narrower question whether
comment upon a defendant's failure to take the stand in his own
defense was constitutionally permissible.
However, all other reasons aside, a cloud has plainly been cast
on the soundness of
Twining and
Adamson by our
decisions absorbing the First and Fourth Amendments in the
Fourteenth. There is no historic or logical reason for supposing
that those Amendments secure more important individual rights. I
need not rely only on
Page 366 U. S. 160
Mr. Justice Bradley's famed statement in
Boyd v. United
States, 116 U. S. 616,
116 U. S. 632,
that compulsory self-incrimination
"is contrary to the principles of a free government. It is
abhorrent to the instincts of an . . . American. It may suit the
purposes of despotic power, but it cannot abide the pure atmosphere
of political liberty and personal freedom."
I may also call to my support the more current appraisal in the
same vein in
Ullmann v. United States, 350 U.
S. 422,
350 U. S.
426-428. The privilege is rightly designated "one of the
great landmarks in man's struggle to make himself civilized."
Griswold, The Fifth Amendment Today, (1955) 7. But, even without
the support of these eminent authorities, I believe that the
unanswerable case for absorption was stated by the first Mr.
Justice Harlan in his dissent in
Twining, supra, p.
211 U. S. 114.
Therefore, with him,
"I cannot support any judgment declaring that immunity from
self-incrimination is not . . . a part of the liberty guaranteed by
the 14th Amendment against hostile state action."
Id. at
211 U. S. 126.
The degree to which the privilege can be eroded unless deterred by
the Fifth Amendment's restraints is forcefully brought home in this
case by the New York Court of Appeals' departure from its former
precedents.
See Judge Fuld's dissent, 7 N.Y. 488, 498, 199
N.Y.S.2d 658, 664, 166 N.E.2d 672, 677.
I would hold that the full sweep of the Fifth Amendment
privilege has been absorbed in the Fourteenth Amendment. In that
view, the protection it affords the individual, lawyer or not,
against the State, has the same scope as that against the National
Government, and, under our decision in
Slochower v. Board of
Education, 350 U. S. 551, the
order under review should be reversed.