Pursuant to subpoena, petitioner appeared before a federal grand
jury which was investigating attempts to endanger the national
security by espionage and conspiracy to commit espionage. Invoking
the privilege against self-incrimination, he refused to answer
questions relating to his knowledge of such activities, to his and
other persons' participation in such activities, and to his and
other persons' membership in the Communist Party. Under the
Immunity Act of 1954, 18 U.S.C. § 2486(c), the United States
Attorney, with the approval of the Attorney General, applied to a
Federal District Court for an order requiring petitioner to testify
before the grand jury. The Court issued such an order; petitioner
persisted in his refusal to testify, and he was convicted of
contempt and sentenced to imprisonment.
Held: The Act is constitutional, and the conviction is
sustained. Pp.
350 U. S.
423-439.
1. The Act does not violate the Fifth Amendment, because the
immunity which it provides against prosecutions, penalties and
forfeitures is sufficiently broad to displace the protection
afforded by the privilege against self-incrimination. Pp.
350 U. S.
429-431.
2. Assuming that the statutory requirements are met, subsection
(c) does not give a Federal District Court discretion to deny an
application for an order requiring a witness to answer relevant
questions put by a grand jury, and therefore it does not impose on
the Court a nonjudicial function. Pp.
350 U. S.
431-434.
3. The Act provides immunity from state prosecution for crime;
and, in doing so, it does not exceed the constitutional power of
Congress. Pp.
350 U. S.
434-436.
4.
Brown v. Walker, 161 U. S. 591,
reaffirmed and followed. Pp.
350 U. S.
436-439.
221 F.2d 760, affirmed.
Page 350 U. S. 423
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
On November 10, 1954, the United States Attorney for the
Southern District of New York filed an application under the
Immunity Act of 1954, 68 Stat. 745, 18 U.S.C. (Supp. II) § 3486,
for an order requiring petitioner to testify before a grand jury.
The Immunity Act, in its pertinent portions, provides:
"(c) Whenever in the judgment of a United States attorney the
testimony of any witness, or the production of books, papers, or
other evidence by any witness, in any case or proceeding before any
grand jury or court of the United States involving any interference
with or endangering of, or any plans or attempts to interfere with
or endanger, the national security or defense of the United States
by treason, sabotage, espionage, sedition, seditious conspiracy,
violations of chapter 115 of title 18 of the United States Code,
violations of the Internal Security Act of 1950 (64 Stat. 987),
violations of the Atomic Energy Act of 1946 (60 Stat. 755), as
amended, violations of sections 212(a)(27), (28), (29) or
241(a)(6), (7) or 313(a) of the Immigration and Nationality Act (66
Stat. 182-186; 204-206; 240-241), and conspiracies involving any of
the foregoing, is necessary to the public interest, he, upon the
approval of the Attorney General, shall make application to the
court that the witness shall be instructed to testify or produce
evidence subject to the provisions
Page 350 U. S. 424
of this section, and upon order of the court such witness shall
not be excused from testifying or from producing books, papers, or
other evidence on the ground that the testimony or evidence
required of him may tend to incriminate him or subject him to a
penalty or forfeiture. But no such witness shall be prosecuted or
subjected to any penalty or forfeiture for or on account of any
transaction, matter, or thing concerning which he is compelled,
after having claimed his privilege against self-incrimination, to
testify or produce evidence, nor shall testimony so compelled be
used as evidence in any criminal proceeding (except prosecution
described in subsection (d) hereof) against him in any court."
"(d) No witness shall be exempt under the provision of this
section from prosecution for perjury or contempt committed while
giving testimony or producing evidence under compulsion as provided
in this section."
In his application, the United States Attorney alleged the
following facts. On November 3, 1954, petitioner, pursuant to
subpoena, appeared before a duly constituted grand jury of the
Southern District of New York which was investigating matters
concerned with attempts to endanger the national security by
espionage and conspiracy to commit espionage. The grand jury asked
him a series of questions relating to his knowledge of such
activities, to his and other persons' participation in such
activities, and to his and other persons' membership in the
Communist Party. Petitioner, invoking the privilege against
self-incrimination, refused to answer the questions. The United
States Attorney also asserted that he deemed the testimony
necessary to the public interest of the United States, and annexed
a letter from the Attorney General of the United States approving
the application.
Page 350 U. S. 425
The United States Attorney, in compliance with a request of the
district judge, filed an affidavit asserting his own good faith in
filing the application.
Petitioner, contesting the application, attacked the
constitutionality of the Act and urged that, if the immunity
statute be held constitutional, the District Court should, in the
exercise of its discretion, deny the application. He filed an
affidavit setting forth in detail experiences with agents of the
Department of Justice and congressional investigating committees
and other information in support of his plea for an exercise of
discretion by the District Court. The Government, in reply, filed
affidavits denying some of the allegations set forth in
petitioner's affidavit.
On January 31, 1955, the District Court sustained the
constitutionality of the statute.
128 F.
Supp. 617. Its order, dated February 8, 1955, instructed
petitioner
"to answer the questions propounded to him before the Grand Jury
and to testify and produce evidence with respect to such matters
under inquiry before said Grand Jury. . . ."
Petitioner appealed from this order, but the Court of Appeals
for the Second Circuit dismissed the appeal on the authority of
Cobbledick v. United States, 309 U.
S. 323.
Petitioner again refused to answer the questions which the
District Court had ordered him to answer. He was then brought
before the District Court and, on stipulation that he had refused
to obey the order of the court of February 8, he was convicted of
contempt and sentenced to six months' imprisonment unless he should
purge himself of the contempt. Petitioner appealed to the Court of
Appeals for the Second Circuit, which affirmed the judgment of the
District Court. 221 F.2d 760. The importance of the questions at
issue, in view of the differences between the legislation sustained
in
Brown v. Walker, 161 U. S. 591, and
the Act under review, led us to bring the case here. 349 U.S.
951.
Page 350 U. S. 426
Four major questions are raised by this appeal: is the immunity
provided by the Act sufficiently broad to displace the protection
afforded by the privilege against self-incrimination? Assuming that
the statutory requirements are met, does the Act give the district
judge discretion to deny an application for an order requiring a
witness to answer relevant questions put by the grand jury, and, if
so, is the court thereby required to exercise a function that is
not an exercise of "judicial Power"? Did Congress provide immunity
from state prosecution for crime, and, if so, is it empowered to do
so? Does the Fifth Amendment prohibit compulsion of what would
otherwise be self-incriminating testimony no matter what the scope
of the immunity statute?
It is relevant to define explicitly the spirit in which the
Fifth Amendment's privilege against self-incrimination should be
approached. This command of the Fifth Amendment ("nor shall any
person . . . be compelled in any criminal case to be a witness
against himself. . . .") registers an important advance in the
development of our liberty -- "one of the great landmarks in man's
struggle to make himself civilized." [
Footnote 1] Time has not shown that protection from the
evils against which this safeguard was directed is needless or
unwarranted. This constitutional protection must not be interpreted
in a hostile or niggardly spirit. Too many, even those who should
be better advised, view this privilege as a shelter for wrongdoers.
They too readily assume that those who invoke it are either guilty
of crime or commit perjury in claiming the privilege. [
Footnote 2] Such a view does scant
honor
Page 350 U. S. 427
to the patriots who sponsored the Bill of Rights as a condition
to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregardful of the
interests of justice. The difference between them and those who
deem the privilege an obstruction to due inquiry has been
appropriately indicated by Chief Judge Magruder:
"Our forefathers, when they wrote this provision into the Fifth
Amendment of the Constitution, had in mind a lot of history which
has been largely forgotten today.
See VIII Wigmore on
Evidence (3d ed.1940) § 2250
et seq.; Morgan, The
Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949). They
made a judgment and expressed it in our fundamental law, that it
were better for an occasional crime to go unpunished than that the
prosecution should be free to build up a criminal case, in whole or
in part, with the assistance of enforced disclosures by the
accused. The privilege against self-incrimination serves as a
protection to the innocent, as well as to the guilty, and we have
been admonished that it should be given a liberal application.
Hoffman v. United States, . . .
341 U. S.
479,
341 U. S. 486. . . . If it
be thought that the privilege is outmoded in the conditions of this
modern
Page 350 U. S. 428
age, then the thing to do is to take it out of the Constitution,
not to whittle it down by the subtle encroachments of judicial
opinion."
Maffie v. United States, 209 F.2d 225, 227. Nothing new
can be put into the Constitution except through the amendatory
process. Nothing old can be taken out without the same process.
No doubt, the constitutional privilege may, on occasion, save a
guilty man from his just deserts. It was aimed at a more
far-reaching evil -- a recurrence of the Inquisition and the Star
Chamber, even if not in their stark brutality. Prevention of the
greater evil was deemed of more importance than occurrence of the
lesser evil. Having had much experience with a tendency in human
nature to abuse power, the Founders sought to close the doors
against like future abuses by law-enforcing agencies.
As no constitutional guarantee enjoys preference, so none should
suffer subordination or deletion. It is appropriate to read the
conviction expressed in a memorable address by Senator Albert J.
Beveridge to the American Bar Association in 1920, a time when
there was also manifested impatience with some of the restrictions
of the Constitution in the presumed interest of security. His
appeal was to the Constitution -- to the whole Constitution, not to
a mutilating selection of those parts only which for the moment
find favor. [
Footnote 3] To
view a particular
Page 350 U. S. 429
provision of the Bill of Rights with disfavor inevitably results
in a constricted application of it. This is to disrespect the
Constitution.
It is in this spirit of strict, not lax, observance of the
constitutional protection of the individual that we approach the
claims made by petitioner in this case. The attack on the Immunity
Act as violating the Fifth Amendment is not a new one. Sixty years
ago, this Court considered, in
Brown v. Walker,
161 U. S. 591, the
constitutionality of a similar Act, the Act of February 11, 1893,
27 Stat. 443. [
Footnote 4] In
that case, Brown, auditor for a railroad company, had been
subpoenaed to testify before a grand jury which was investigating
charges that officers and agents of the company had violated the
Interstate Commerce Act. Invoking the privilege against
self-incrimination, he refused to answer certain questions
concerning the operations and the rebate policy of the railroad. On
an order to show cause before the United States District Court for
the Western District of Pennsylvania, he was adjudged in contempt.
His petition for a writ of habeas corpus to the Circuit Court for
the Western District
Page 350 U. S. 430
of Pennsylvania was dismissed. Petitioner appealed to this
Court, urging that the 1893 immunity statute was
unconstitutional.
The Court considered and rejected petitioner's arguments,
holding that a statute which compelled testimony but secured the
witness against a criminal prosecution which might be aided
directly or indirectly by his disclosures did not violate the Fifth
Amendment's privilege against self-incrimination, and that the 1893
statute did provide such immunity.
"While the constitutional provision in question is justly
regarded as one of the most valuable prerogatives of the citizen,
its object is fully accomplished by the statutory immunity, and we
are, therefore, of opinion that the witness was compellable to
answer. . . ."
161 U.S. at
161 U. S. 610.
[
Footnote 5]
Petitioner, however, attempts to distinguish
Brown v.
Walker. He argues that this case is different from
Brown
v. Walker because the impact of the disabilities imposed by
federal and state authorities and the public in general -- such as
loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility, and general public
opprobrium -- is so oppressive that the statute does not give him
true immunity. This, he alleges, is significantly different from
the impact of testifying on the auditor in
Brown v.
Walker, who could the next day resume his job with reputation
unaffected. [
Footnote 6] But,
as this Court has often held,
Page 350 U. S. 431
the immunity granted need only remove those sanctions which
generate the fear justifying invocation of the privilege:
"The interdiction of the Fifth Amendment operates only where a
witness is asked to incriminate himself -- in other words, to give
testimony which may possibly expose him to a criminal charge. But
if the criminality has already been taken away, the Amendment
ceases to apply."
Hale v. Henkel, 201 U. S. 43,
201 U. S. 67.
Here, since the Immunity Act protects a witness who is compelled to
answer to the extent of his constitutional immunity, he has, of
course, when a particular sanction is sought to be imposed against
him, the right to claim that it is criminal in nature.
Again, the petitioner seeks to distinguish this case from
Brown v. Walker by claiming that, under the Immunity Act
of 1954, the district judge to whom the United States Attorney must
apply for an order instructing him to testify has discretion in
granting the order, and thus has discretion in granting the
immunity which automatically follows from the order. Petitioner
cites the language of the statute, the legislative history, and
miscellaneous other authorities in support of his construction. The
Government contends that the court has no discretion to determine
whether the public interest would best be served by exchanging
immunity from prosecution for testimony, that its only function is
to order a witness to testify if it determines that the case is
within the framework of the statute.
We are concerned here only with § (c), and therefore need not
pass on this question with respect to §§ (a) and
Page 350 U. S. 432
(b) of the Act. [
Footnote 7]
A fair reading of § (c) does not indicate that the district judge
has any discretion to deny the order on the ground that the public
interest does not
Page 350 U. S. 433
warrant it. We agree with District Judge Weinfeld's
interpretation of this section: [
Footnote 8]
"The most that can be said for the legislative history is that
it is, on the whole, inconclusive. Certainly it contains nothing
that requires the court to reject the construction which the
statutory language clearly requires. Especially is this so where
the construction contended for purports to raise a serious
constitutional question as to the role of the judiciary under the
doctrine of separation of powers. The Supreme Court has repeatedly
warned"
"if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the
question may be avoided. [
Footnote
9]"
"Indeed, the Court has stated that words may be strained 'in the
candid service of avoiding a serious constitutional doubt.'
[
Footnote 10] Here, there is
no need to strain words. It requires neither torturing of language
nor disregard of a clear legislative policy [
Footnote 11] to avoid the constitutional
question advanced by the witness. Indeed, to reach the
constitutional issue would require straining of language. In such
circumstances, the court's duty is plainly to avoid the
constitutional question."
128 F. Supp. at 627-628.
Page 350 U. S. 434
Since the Court's duty under § (c) is only to ascertain whether
the statutory requirements are complied with by the grand jury, the
United States Attorney, and the Attorney General, we have no
difficulty in concluding that the district court is confined within
the scope of "judicial Power."
Interstate Commerce Commission
v. Brimson, 154 U. S. 447.
Petitioner further argues that the immunity is not
constitutionally sufficient so long as a witness is subject to the
very real possibility of state prosecution. He urges that the
statute does not, and constitutionally could not, grant such
immunity. The immunity portion of the statute contains two parts.
The first prohibits prosecutions and is worded virtually in the
terms of the 1893 Act. The second makes explicit that the compelled
testimony shall not be used against the witness in any proceeding
in any court. Such a clause was construed in
Adams v.
Maryland, 347 U. S. 179, to
apply to state courts. In
Brown v. Walker, it was urged
that the prohibition against prosecution did not grant protection
against prosecution in the state courts. First finding that
Congress could constitutionally provide such immunity, the Court
then interpreted the statute:
"The act in question contains no suggestion that it is to be
applied only to the Federal courts. It declares broadly that"
"no person shall be excused from attending and testifying . . .
before the Interstate Commerce Commission . . . on the ground . . .
that the testimony . . . required of him may tend to criminate
him,"
"etc."
"But no person shall be prosecuted or subjected to any penalty
or forfeiture for or on account of any transaction, matter or thing
concerning which he may testify,"
"etc. It is not that he shall not be prosecuted for or on
account of any crime concerning which he may testify, which
might
Page 350 U. S. 435
possibly be urged to apply only to crimes under the Federal law
and not to crimes, such as the passing of counterfeit money, etc.,
which are also cognizable under state laws; but the immunity
extends to any transaction, matter or thing concerning which he may
testify, which clearly indicates that the immunity is intended to
be general, and to be applicable whenever and in whatever court
such prosecution may be had."
161 U.S. at
161 U. S.
607-608. The Report of the Committee on the Judiciary of
the House of Representatives supports the broad interpretation of
the Act before us:
"Even though the power of Congress to prohibit a subsequent
State prosecution is doubtful, such a constitutional question
should not prevent the enactment of the recommended bill. The
language of the amendment . . . is sufficiently broad to ban a
subsequent State prosecution if it be determined that the Congress
has the constitutional power to do so. In addition, the amendment
recommended provides the additional protection -- as set forth in
the
Adams case, by outlawing the subsequent use of the
compelled testimony in any criminal proceeding -- State or
Federal."
"By the use of these two distinct concepts, the committee
believes that the fullest protection that can be afforded the
witness will be achieved."
H.R.Rep. No. 2606, 83d Cong., 2d Sess. 7.
Petitioner questions the constitutional power of Congress to
grant immunity from state prosecution. Congressional abolition of
state power to punish crimes committed in violation of state law
presents a more drastic exercise of congressional power than that
which we considered in
Adams. In that case, only the use
of the compelled testimony, not prosecution itself, was
prohibited.
Page 350 U. S. 436
Here, the State is forbidden to prosecute. But it cannot be
contested that Congress has power to provide for national defense
and the complementary power
"To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof."
U.S.Const., Art. I, § 8, cl. 18. The Immunity Act is concerned
with the national security. It reflects a congressional policy to
increase the possibility of more complete and open disclosure by
removal of fear of state prosecution. We cannot say that Congress'
paramount authority in safeguarding national security does not
justify the restriction it has placed on the exercise of state
power for the more effective exercise of conceded federal power. We
have already, in the name of the Commerce Clause, upheld a similar
restriction on state court jurisdiction,
Brown v. Walker,
161 U.S. at
161 U. S.
606-607, and we can find no distinction between the
reach of congressional power with respect to commerce and its power
with respect to national security.
See also Hines v.
Davidowitz, 312 U. S. 52.
[
Footnote 12]
Petitioner also urges that, if
Brown v. Walker is found
nondistinguishable and controlling, then that case should be
reconsidered and overruled. He also urges upon us a "return" to a
literal reading of the Fifth Amendment.
Brown v. Walker
was the second case to deal with an immunity statute. Four years
previously, in
Counselman v. Hitchcock, 142 U.
S. 547, a unanimous Court had found
Page 350 U. S. 437
constitutionally inadequate the predecessor to the 1893 statute
because the immunity granted was incomplete, in that it merely
forbade the use of the testimony given, and failed to protect a
witness from future prosecution based on knowledge and sources of
information obtained from the compelled testimony. It was with this
background that the 1893 statute, providing complete immunity from
prosecution, was passed, and that
Brown v. Walker was
argued and decided. As in
Counselman, appellant's numerous
arguments were presented by James C. Carter, widely acknowledged as
the leader of the American bar. [
Footnote 13] The Court was closely divided in upholding
the statute, and the opinions reflect the thoroughness with which
the issues were considered. Since that time, the Court's holding in
Brown v. Walker has never been challenged; the case and
the doctrine it announced have consistently and
Page 350 U. S. 438
without question been treated as definitive by this Court in
opinions written, among others, by Holmes and Brandeis, JJ.
See, e.g., McCarthy v. Arndstein, 266 U. S.
34,
266 U. S. 42;
Heike v. United States, 227 U. S. 131,
227 U. S. 142.
The 1893 statute has become part of our constitutional fabric, and
has been included "in substantially the same terms, in virtually
all of the major regulatory enactments of the Federal Government."
Shapiro v. United States, 335 U. S.
1,
335 U. S. 6. For a
partial list of these statutes,
see id. at
335 U. S. 6-7, n.
4. Moreover, the States, with one exception -- a case decided prior
to
Brown v. Walker -- have, under their own constitutions,
enunciated the same doctrine, 8 Wigmore, Evidence (3d ed.), § 2281,
and have passed numerous statutes compelling testimony in exchange
for immunity in the form either of complete amnesty or of
prohibition of the use of the compelled testimony. For a list of
such statutes,
see 8 Wigmore, Evidence (3d ed.), § 2281,
n. 11 (pp. 478-501) and Pocket Supplement thereto, § 2281, n. 11
(pp. 147-157).
We are not dealing here with one of the vague, undefinable,
admonitory provisions of the Constitution whose scope is inevitably
addressed to changing circumstances. The privilege against
self-incrimination is a specific provision of which it is
peculiarly true that "a page of history is worth a volume of
logic."
New York Trust Co. v. Eisner, 256 U.
S. 345,
256 U. S. 349.
For the history of the privilege establishes not only that it is
not to be interpreted literally, [
Footnote 14] but also that its sole concern is, as its
name indicates, with the danger to a witness forced to give
testimony leading to the infliction of "penalties
Page 350 U. S. 439
affixed to the criminal acts. . . ."
Boyd v. United
States, 116 U. S. 616,
116 U. S. 634.
We leave
Boyd v. United States unqualified, as it was left
unqualified in
Brown v. Walker. Immunity displaces the
danger. Once the reason for the privilege ceases, the privilege
ceases. We reaffirm
Brown v. Walker, and, in so doing, we
need not repeat the answers given by that case to the other points
raised by petitioner. [
Footnote
15]
The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE REED concurs in the opinion and judgment of the
Court except as to the statement that no constitutional
Page 350 U. S. 440
guarantee enjoys preference.
Murdock v. Pennsylvania,
319 U. S. 105,
319 U. S. 115;
Thomas v. Collins, 323 U. S. 516,
323 U. S. 530;
cf. Kovacs v. Cooper, 336 U. S. 77,
336 U. S.
88.
[
Footnote 1]
Griswold, The Fifth Amendment Today (1955), 7.
[
Footnote 2]
Father John Fearon, O.P., has addressed himself to this
misapprehension:
"What is to be said of the opinion that an innocent man has an
obligation in conscience not to have recourse to the Fifth
Amendment? Since the natural law does not provide explicitly for
this circumstance, moral obligation has to be determined by civil
law. Actually the determination of civil law is quite clear: the
innocent and guilty alike have a right of recourse to the Fifth
Amendment. And if the innocent man has a clearly defined right to
such recourse, it is inconceivable that he could simultaneously
have a duty not to have recourse, since rights and duties are
correlative. Nor can it be urged that non-recourse is a duty of
piety, rather than justice. If such an opinion were binding, and
all innocent men waived their rights to the protection of the Fifth
Amendment, the purpose of the law would be defeated, and the common
welfare of the nation would suffer, rather than prosper."
Congressional Investigations and Moral Theology, The Commonweal,
Feb.19, 1954, 497, 499.
[
Footnote 3]
"If liberty is worth keeping and free representative government
worth saving, we must stand for
all American fundamentals
-- not some, but all. All are woven into the great fabric of our
national wellbeing. We cannot hold fast to some only, and abandon
others that, for the moment, we find inconvenient. If one American
fundamental is prostrated, others in the end will surely fall. The
success or failure of the American theory of society and government
depends upon our fidelity to every one of those interdependent
parts of that immortal charter of orderly freedom, the Constitution
of the United States."
Beveridge, The Assault upon American Fundamentals, 45 Reports of
American Bar Assn., 188, 216 (1920).
[
Footnote 4]
". . . no person shall be excused from attending and testifying
or from producing books, papers, tariffs, contracts, agreements and
documents before the Interstate Commerce Commission, or in
obedience to the subpoena of the Commission . . . or in any cause
or proceeding, criminal or otherwise, based upon or growing out of
any alleged violation of the act of Congress, entitled 'An act to
regulate commerce' . . . on the ground or for the reason that the
testimony or evidence, documentary or otherwise, required of him,
may tend to criminate him or subject him to a penalty or
forfeiture. But no person shall be prosecuted or subjected to any
penalty or forfeiture for or on account of any transaction, matter
or thing, concerning which he may testify, or produce evidence,
documentary or otherwise, before said Commission, or in obedience
to its subpoena . . . or in any such case or proceeding:
Provided, That no person so testifying shall be exempt
from prosecution and punishment for perjury committed in so
testifying."
[
Footnote 5]
Shiras, J., joined by Gray and White, JJ., and Field, J.,
dissented.
[
Footnote 6]
It is true that the Court in
Brown v. Walker
stated:
". . . it is entirely clear that he was not the chief or even a
substantial offender against the law, and that his privilege was
claimed for the purpose of shielding the railway or its officers
from answering a charge of having violated its provisions. To say
that, notwithstanding his immunity from punishment, he would incur
personal odium and disgrace from answering these questions seems
too much like an abuse of language to be worthy of serious
consideration."
161 U.S. at
161 U. S.
609-610. The Court, however, concluded:
"But, even if this were true, under the authorities above cited,
he would still be compelled to answer if the facts sought to be
elucidated were material to the issue."
Id. at
161 U. S. 610.
For a fuller exposition,
see id. at
161 U. S.
605-606.
[
Footnote 7]
"(a) In the course of any investigation relating to any
interference with or endangering of, or any plans or attempts to
interfere with or endanger the national security or defense of the
United States by treason, sabotage, espionage, sedition, seditious
conspiracy or the overthrow of its Government by force or violence,
no witness shall be excused from testifying or from producing
books, papers, or other evidence before either House, or before any
committee of either House, or before any joint committee of the two
Houses of Congress on the ground that the testimony or evidence
required of him may tend to incriminate him or subject him to a
penalty or forfeiture, when the record shows that --"
"(1) in the case of proceedings before one of the Houses of
Congress, that a majority of the members present of that House;
or"
"(2) in the case of proceedings before a committee, that
two-thirds of the members of the full committee shall by
affirmative vote have authorized such witness to be granted
immunity under this section with respect to the transactions,
matters, or things concerning which he is compelled, after having
claimed his privilege against self-incrimination to testify or
produce evidence by direction of the presiding officer and"
"that an order of the United States district court for the
district wherein the inquiry is being carried on has been entered
into the record requiring said person to testify or produce
evidence. Such an order may be issued by a United States district
court judge upon application by a duly authorized representative of
the Congress or of the committee concerned. But no such witness
shall be prosecuted or subjected to any penalty or forfeiture for
or on account of any transaction, matter, or thing concerning which
he is so compelled, after having claimed his privilege against
self-incrimination, to testify or produce evidence, nor shall
testimony so compelled be used as evidence in any criminal
proceeding (except prosecutions described in subsection (d) hereof)
against him in any court."
"(b) Neither House nor any committee thereof nor any joint
committee of the two Houses of Congress shall grant immunity to any
witness without first having notified the Attorney General of the
United States of such action and thereafter having secured the
approval of the United States district court for the district
wherein such inquiry is being held. The Attorney General of the
United States shall be notified of the time of each proposed
application to the United States district court and shall be given
the opportunity to be heard with respect thereto prior to the
entrance into the record of the order of the district court."
[
Footnote 8]
The footnotes in the district judge's opinion have been
renumbered.
[
Footnote 9]
"
Crowell v. Benson, 285 U. S. 22,
285 U. S.
62 . . .
United States v. Rumely, 345 U. S.
41,
345 U. S. 45 . . .
United
States v. C.I.O., 335 U. S. 106 . . . Brandeis, J.
concurring in
Ashwander v. TVA, 297 U. S.
288,
297 U. S. 341,
297 U. S.
348 . . . and cases cited."
[
Footnote 10]
"
United States v. Rumely, 345 U. S.
41,
345 U. S. 47. . . ."
[
Footnote 11]
"
Cf. Shapiro v. United States, 335 U. S. 1,
335 U. S. 31. . . ."
[
Footnote 12]
We need not consider at this time petitioner's claim that
immunity is not complete and the statute unconstitutional because
he can be prosecuted later for participation in a continuing
conspiracy. Congress has the power to provide, and has provided,
that immunity from prosecution which the Constitution requires.
See Heike v. United States, 227 U.
S. 131,
227 U. S.
142.
[
Footnote 13]
He urged that the statute left the witness in a worse condition
because it did not abrogate the crime for which he was given
immunity; that the constitutional safeguard goes toward relieving
the witness from the danger of an accusation being made against him
while the statutory immunity forces him to supply evidence leading
to an accusation and provides only a means for defense; that the
statute puts a heavy burden on petitioner, if he is indicted, to
prove that he had testified concerning the matter for which he was
indicted; that a citizen is entitled to the very thing secured to
him by the constitutional safeguards, and not something which will
probably answer the same purpose; that the statute subjects him to
the infamy and disgrace from which he was protected by the
constitutional safeguard; that the statute did not protect him from
prosecution for a state crime; that, even if it were so
interpreted, Congress had no power to grant such protection; that
the immunity granted was too narrow, since it only extended to
matters concerning which he was called to testify, and not to all
matters related to the testimony given; that, to be able to claim
the privilege, the witness would virtually have to reveal his crime
in order that the court could see that the statute failed to
protect him, and, finally, that the statute was an attempt to
exercise the power of pardon, which was a power not delegated to
Congress.
[
Footnote 14]
". . . the provisions of the Constitution are not mathematical
formulas having their essence in their form; they are organic
living institutions transplanted from English soil. Their
significance is vital, not formal; it is to be gathered not simply
by taking the words and a dictionary, but by considering their
origin and the line of their growth."
Gompers v. United States, 233 U. S.
60,
233 U. S.
610.
[
Footnote 15]
We do not discuss petitioner's argument, relying on the First
Amendment, that inquiry into his political membership and
associations is unconstitutional. Petitioner contends that some of
the questions which he was asked are objectionable because they
require testimony that is protected by the implications of the
First Amendment. But it is every man's duty to give testimony
before a duly constituted tribunal unless he invokes some valid
legal exemption in withholding it. Although petitioner made the
First Amendment argument when the United States Attorney applied,
under the Immunity Act, for an order requiring him to testify, when
he was cited for contempt, he urged only
"all of the grounds we urged before Judge Weinfeld in opposition
to the statute, in support of our contention that the statute was
unconstitutional. We will rest on that, and proceed on that basis
in the Appellate Courts."
Petitioner did not make any objection to the questions other
than the assertion of the unconstitutionality of the Immunity Act.
It should also be noted that, when petitioner -- who, the record
shows, was an experienced witness, had been advised by counsel
especially experienced in this field, and was desirous of making
this a test case -- refused to answer the questions propounded
before the grand jury the second time, he did not claim any
privilege under the First Amendment. His counsel, by way of
dispensing with the reading of the minutes of what took place
before the grand jury, stated that
"the reason given for his refusal was that he feared the answers
might incriminate him and he pleaded his privilege under the Fifth
Amendment of the Constitution."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
I would reverse the judgment of conviction. I would base the
reversal on
Boyd v. United States, 116 U.
S. 616, or, in the alternative, I would overrule the
five-to-four decision of
Brown v. Walker, 161 U.
S. 591, and adopt the view of the minority in that case
that the right of silence created by the Fifth Amendment is beyond
the reach of Congress.
First, as to the
Boyd case. There are numerous
disabilities created by federal law that attach to a person who is
a Communist. These disabilities include ineligibility for
employment in the Federal Government and in defense facilities,
disqualification for a passport, the risk of internment, the risk
of loss of employment as a longshoreman -- to mention only a few.
[
Footnote 2/1] These disabilities
imposed by federal law are forfeitures within the meaning of our
cases, and as much protected by the Fifth
Page 350 U. S. 441
Amendment as criminal prosecution itself. But there is no
indication that the Immunity Act, 68 Stat. 745, 18 U.S.C. (Supp.
II) § 3486, grants protection against those disabilities. The
majority will not say that it does. I think, indeed, that it must
be read as granting only partial, not complete, immunity for the
matter disclosed under compulsion. Yet, as the Court held in
Counselman v. Hitchcock, 142 U. S. 547,
142 U. S. 586,
an immunity statute, to be valid, must "supply a complete
protection from all the perils against which the constitutional
prohibition was designed to guard. . . ."
Boyd v. United States, supra, involved a proceeding to
establish a forfeiture of goods alleged to have been fraudulently
imported without payment of duties. The claimants resisted an order
requiring the production of an invoice to be used against them in
the forfeiture proceedings. The Court, in an opinion by Mr. Justice
Bradley, sustained the defense of the Fifth Amendment. The Court
said,
"A witness, as well as a party, is protected by the law from
being compelled to give evidence that tends to criminate him, or to
subject his property to forfeiture."
116 U.S. at
116 U. S. 638.
And see Lees v. United States, 150 U.
S. 476. The contrary holding was deemed hostile to the
spirit of our institutions:
". . . any compulsory discovery by extorting the party's oath,
or compelling the production of his private books and papers, to
convict him of crime, or to forfeit his property, is contrary to
the principles of a free government. It is abhorrent to the
instincts of an Englishman; 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."
116 U.S. at
116 U. S.
631-632.
Page 350 U. S. 442
The forfeiture of property on compelled testimony is no more
abhorrent than the forfeiture of rights of citizenship. Any
forfeiture of rights as a result of compelled testimony is at war
with the Fifth Amendment.
The Court apparently distinguishes the
Boyd case on the
ground that the forfeiture of property was a penalty affixed to a
criminal act. The loss of a job and the ineligibility for a
passport are also penalties affixed to a criminal act. For the case
of
Dennis v. United States, 341 U.
S. 494, makes plain that membership in the Communist
Party is a crucial link of evidence for conviction under the Smith
Act, 54 Stat. 671, as amended, 62 Stat. 808, 18 U.S.C. § 2385.
And see Blau v. United States, 340 U.
S. 159. When a man loses a job because he is a
Communist, there is as much a penalty suffered as when an importer
loses property because he is a tax evader. When a man loses his
right to a passport because he is a Communist, there is as much a
penalty suffered as when property is lost for violation of the
revenue laws. If there was a penalty suffered in the
Boyd
case, there are penalties suffered here. Both are hitched to
criminal acts. And the Constitution places the property rights
involved in the
Boyd case no higher than the rights of
citizenship involved here.
The Court may mean that, if disqualification for government
employment or ineligibility for a passport is a forfeiture within
the meaning of the
Boyd case, Congress has lifted these
disabilities in exchange for the witness' testimony. Congress, I
think, will be surprised to hear this. There is nothing in the
legislative history that would suggest that Congress was willing to
pay any such price for the testimony. If the disabilities which
attach under existing law are forfeitures, the Court should strike
down the Act. If Congress chooses to enact a new Immunity Act broad
enough to protect against all forfeitures, it is free to do so. The
Court seems to commit
Page 350 U. S. 443
Congress to a policy that there is no indication Congress
favors.
We should apply the principle of the
Boyd case to the
present one, and hold that, since there is no protection in the
Immunity Act against loss of rights of citizenship, the immunity
granted is less than the protection afforded by the Constitution.
Certainly personal freedom has at least as much constitutional
dignity as property.
Second, as to
Brown v. Walker. The difficulty I have
with that decision and with the majority of the Court in the
present case is that they add an important qualification to the
Fifth Amendment. The guarantee is that no person "shall be
compelled in any criminal case to be a witness against himself."
The majority does not enforce that guarantee as written, but
qualifies it, and the qualification apparently reads, "but only if
criminal conviction might result." Wisely or not, the Fifth
Amendment protects against the compulsory self-accusation of crime
without exception or qualification. In
Counselman v. Hitchcock,
supra, at
142 U. S. 562,
Mr. Justice Blatchford said, "The privilege is limited to criminal
matters, but it is as broad as the mischief against which it seeks
to guard."
The "mischief" to be prevented falls under at least three
heads.
(1) One "mischief" is not only the risk of conviction, but the
risk of prosecution. Mr. Justice Shiras, one of the four dissenters
in
Brown v. Walker, alluded to this difficulty when he
declared that the immunity statute involved in that case was
unconstitutional:
". . . all that can be said is that the witness is
not
protected by the provision in question from being
prosecuted, but that he has been furnished with a good
plea to the indictment which will secure his acquittal. But is that
true? Not unless the plea is sustained by competent evidence. His
condition,
Page 350 U. S. 444
then, is that he has been prosecuted, been compelled,
presumably, to furnish bail, and put to the trouble and expense of
employing counsel and furnishing the evidence to make good his
plea."
161 U.S. at
161 U. S.
621.
The risk of prosecution is not a risk which the wise take
lightly. As experienced a judge as Learned Hand once said, "I must
say that, as a litigant, I should dread a lawsuit beyond almost
anything else short of sickness and of death."
See Frank,
Courts on Trial (1949), 40. A part of the dread in a case such as
this is the chain of events that may be put in motion once
disclosure is made. The truth is, I think, that there is no control
left once the right of secrecy is broken. For the statute protects
the accused only on account of the "transaction, matter, or thing"
concerning which he is compelled to testify, and bars the use as
evidence of the "testimony so compelled." The forced disclosure may
open up vast new vistas for the prosecutor, with leads to numerous
accusations not within the purview of the question and answer. What
related offenses may be disclosed by leads furnished by the
confession? How remote need the offense be before the immunity
ceases to protect it? How much litigation will it take to determine
it? What will be the reaction of the highest court when the facts
of the case reach it?
It is, for example, a crime for a person who is a member of a
Communist organization registered under the Subversive Activities
Control Act, 64 Stat. 987, 50 U.S.C. § 781, to be employed by the
United States, to be employed in any defense facility, to hold
office or employment with any labor organization, § 5(a)(1), or to
apply for a passport or to use a passport. § 6(a). The crime under
that Act is the application for a passport, the use of a passport,
or employment by one of the named agencies, as the case may be. Are
those crimes included within
Page 350 U. S. 445
the "transaction, matter, or thing" protected by the Immunity
Act?
The Taft-Hartley Act, 61 Stat. 146, 29 U.S.C. § 159(h), requires
officers of labor organizations to file non-Communist affidavits as
a condition to the exercise by the National Labor Relations Board
of its power to make investigations or to issue complaints. A
witness before a grand jury or congressional committee is compelled
under the force of the Immunity Act to testify. He testifies that
he is not a member of the Communist Party. He then files an
affidavit under the Taft-Hartley Act to that effect. May he be
prosecuted for filing a false affidavit?
These are real and dread uncertainties that the Immunity Act
does not remove. They emphasize that one protective function of the
Fifth Amendment is at once removed when the guarantee against
self-incrimination is qualified in the manner it is today.
The Court leaves all those uncertainties to another day, saying
that the immunity granted by Congress will extend to its
constitutional limits, and that those constitutional limits will be
determined case by case in future litigation. That means that no
one knows what the limits are. The Court will not say. Only
litigation on a distant day can determine it.
The concession of the Court underlines my point. It shows that
the privilege of silence is exchanged for a partial, undefined,
vague immunity. It means that Congress has granted far less than it
has taken away.
(2) The guarantee against self-incrimination contained in the
Fifth Amendment is not only a protection against conviction and
prosecution, but a safeguard of conscience and human dignity and
freedom of expression, as well. My view is that the Framers put it
beyond the power of Congress to
compel anyone to confess
his crimes. The evil to be guarded against was partly
self-accusation
Page 350 U. S. 446
under legal compulsion. But that was only a part of the evil.
The conscience and dignity of man were also involved. So too was
his right to freedom of expression guaranteed by the First
Amendment. [
Footnote 2/2] The
Framers, therefore, created the federally protected right of
silence and decreed that the law could not be used to pry open
one's lips and make him a witness against himself.
A long history and a deep sentiment lay behind this decision.
Some of those who came to these shores were Puritans who had known
the hated oath
ex officio used both by the Star Chamber
and the High Commission.
See Maguire, Attack of the Common
Lawyers on the Oath
Ex Officio as Administered in the
Ecclesiastical Courts in England, Essays in History and Political
Theory (1936), c. VII. They had known the great rebellion of
Lilburn, Cartwright and others against those instruments of
oppression. Cartwright had refused to take the oath
ex
officio before the High Commission on the grounds that "hee
thought he was not bound by the lawes of God so to doe." Pearson,
Thomas Cartwright and Elizabethan Puritanism 1535-1603 (1925), 318.
Lilburn marshalled many arguments against the oath
ex
officio, one of them being the sanctity of conscience and the
dignity of man before God:
"as for that Oath that was put upon me, I did refuse to take it
as a sinful and unlawful oath, and by the strength of my God
enabling me, I will never take it, though I be pulled in pieces by
wild horses, as
Page 350 U. S. 447
the antient Christians were by the bloody tyrants in the
Primitive Church; neither shall I think that man a faithful subject
of Christ's kingdom that shall at any time hereafter take it,
seeing the wickedness of it hath been so apparently laid open by so
many, for the refusal whereof many do suffer cruel persecution to
this day."
The Trial of Lilburn and Wharton, 3 How.St.Tr. 1315, 1332.
The literature of the Levellers, of whom Lilburn was a leader,
abounds in this attitude. In 1648, there was published a
Declaration in the form of a petition, item 12 of which reads:
"That all Statutes for all kinds of Oaths, whether in
Corporations, Cities, or other, which insnare conscientious people,
as also other Statutes injoyning all to hear the Book of Common
Prayer, be forthwith repealed and nulled, and that nothing be
imposed upon the consciences of any to compel them to sin against
their own consciences."
Haller & Davies, The Leveller Tracts 1647-1653 (1944),
112.
In 1653, Lilburn published The Just Defence, in which he
wrote:
"Another fundamental right I then contended for was that no mans
conscience ought to be racked by oaths imposed, to answer to
questions concerning himself in matters criminal, or pretended to
be so."
Haller & Davies,
id. at 454.
These are important declarations, as they throw light on the
meaning of "compelled" as used in the Fifth Amendment.
The amending process that brought the Fifth Amendment into the
Constitution is of little aid in our problem of interpretation. But
there are indications in the debates on the Constitution that the
evil to be remedied was the use of torture to exact confessions.
See, e.g.,
Page 350 U. S. 448
Virginia Debates (2d ed. 1805), 221, 320-321; 2 Elliot's Debates
(2d ed. 1876), 111. It was, indeed, the condemnation of torture to
exact confessions that was written into the early law of the
American Colonies. Article 45 of the Massachusetts Body of
Liberties of 1641 provided in part, "No man shall be forced by
Torture to confesse any Crime against himselfe nor any other. . .
." Connecticut adopted a similar provision. Laws of Connecticut
Colony (1865 ed.), 65. Virginia soon followed suit: ". . . noe law
can compell a man to sweare against himselfe in any matter wherein
he is lyable to corporall punishment." Hening, Statutes at Large,
Vol. II, 422.
The compulsion outlawed was moral compulsion, as well as
physical compulsion. An episode in the administration of Governor
William Bradford of the Plymouth Plantation illustrates the point.
He sought advice from his ministers, asking "How farr a magistrate
may extracte a confession from a delinquente to acuse him selfe of
a capitall crime. . . ." The three ministers -- Ralph Partrich,
John Reynor, and Charles Chancy -- were unanimous in concluding
that the oath was against both the laws of God and the laws of man.
Partrich's answer is typical:
"[The magistrate] may not extracte a confession of a capitall
crime from a suspected person by any violent means, whether it be
by an oath imposed, or by any punishmente inflicted or threatened
to be inflicted."
Bradford, History of Plymouth Plantation, Mass.Hist.Soc.Coll.
Ser. 4, Vol. III, 390-391.
And see Griswold, The Fifth Amendment Today (1955), 4;
Morgan, The Privilege Against Self Incrimination, 34 Minn.L.Rev. 1,
22; Pittman, The Colonial and Constitutional History of the
Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763,
769.
The Court, by forgetting that history, robs the Fifth Amendment
of one of the great purposes it was designed
Page 350 U. S. 449
to serve. To repeat, the Fifth Amendment was written in part to
prevent any Congress, any court, and any prosecutor from prying
open the lips of an accused to make incriminating statements
against his will. The Fifth Amendment protects the conscience and
the dignity of the individual, as well as his safety and security,
against the compulsion of government. [
Footnote 2/3]
(3) This right of silence, this right of the accused to stand
mute, serves another high purpose. Mr. Justice Field, one of the
four dissenters in
Brown v. Walker, stated that it is the
aim of the Fifth Amendment to protect the accused from all
compulsory testimony "which would expose him to infamy and
disgrace," as well as that which might lead to a criminal
conviction. 161 U.S. at
161 U. S. 631.
One of the most powerful opinions in the books maintaining that
thesis is by Judge Peter S. Grosscup in
United States v.
James, 60 F. 257, involving the same Immunity Act as the one
involved in
Brown v. Walker. Judge Grosscup reviewed the
history of the reign of intolerance that once ruled England, the
contests between Church and State, and the cruelties of the old
legal procedures. Judge Grosscup said concerning the aim of the
Framers in drafting the Fifth Amendment (
id. at 264):
"Did they originate such privilege simply to safeguard
themselves against the law-inflicted penalties
Page 350 U. S. 450
and forfeitures? Did they take no thought of the pains of
practical outlawry? The stated penalties and forfeitures of the law
might be set aside, but was there no pain in disfavor and odium
among neighbors, in excommunication from church or societies that
might be governed by the prevailing views, in the private
liabilities that the law might authorize, or in the unfathomable
disgrace, not susceptible of formulation in language, which a known
violation of law brings upon the offender? Then, too, if the
immunity was only against the law-inflicted pains and penalties,
the government could probe the secrets of every conversation, or
society by extending compulsory pardon to one of its participants,
and thus turn him into an involuntary informer. Did the framers
contemplate that this privilege of silence was exchangeable always,
at the will of the government, for a remission of the participant's
own penalties, upon a condition of disclosure, that would bring
those to whom he had plighted his faith and loyalty within the
grasp of the prosecutor? I cannot think so."
Mr. Justice Field and Judge Grosscup were on strong historical
ground. The Fifth Amendment was designed to protect the accused
against infamy, as well as against prosecution. A recent analysis
by Professor Mitchell Franklin of Tulane illuminates the point.
See The
Encyclopediste Origin and Meaning of the
Fifth Amendment, 15 Lawyers Guild Rev. 41. He shows how the Italian
jurist Beccaria, and his French and English followers, influenced
American thought in the critical years following our Revolution.
The history of infamy as a punishment was notorious. Luther had
inveighed against excommunication. The Massachusetts Body of
Liberties of 1641 had provided in Article 60:
"No church censure shall degrad or depose any man from any
Civill
Page 350 U. S. 451
dignitie, office, or Authorities he shall have in the
Commonwealth."
Loss of office, loss of dignity, loss of face were feudal forms
of punishment. Infamy was historically considered to be punishment
as effective as fine and imprisonment. [
Footnote 2/4]
The Beccarian attitude toward infamy was a part of the
background of the Fifth Amendment. The concept of infamy was
explicitly written into it. We need not guess as to that. For the
first Clause of the Fifth Amendment contains the concept
in
haec verba:
"No person shall be held to answer for a capital, or otherwise
infamous crime, [
Footnote
2/5] unless on a presentment or indictment
Page 350 U. S. 452
of a Grand Jury. . . ."
(Italics added.) And the third Clause, the one we are concerned
with here -- "No person . . . shall be compelled in any criminal
case to be a witness against himself . . ." -- also reflects the
revulsion of society at infamy imposed by the State. Beccaria,
whose works were well known here [
Footnote 2/6] and who was particularly well known to
Jefferson, [
Footnote 2/7] was the
main voice against the use of infamy as punishment. The curse of
infamy, he showed, results from public opinion. Oppression occurs
when infamy is imposed on the citizen by the State. The French
jurist Brissot de Warville wrote in support of Beccaria's
position,
"It is in the power of the mores, rather than in the hands of
the legislator, that this terrible weapon of infamy rests, this
type of civil excommunication, which deprives the victim of all
consideration, which severs all the ties which bind him to his
fellow citizens, which isolates him in the midst of
Page 350 U. S. 453
society. The purer and more untouched the customs are, the
greater the force of infamy."
I Theorie des Loix Criminelles (1781) 188. As de Pastoret
said,
"Infamy, being a result of opinion, exists independently of the
legislator; but he can employ it adroitly to make of it a salutary
punishment. [
Footnote 2/8] "
Des Loix Penales (1790), Pt. 2, 121.
It was in this tradition that Lord Chief Justice Treby ruled in
1696 that ". . . no man is bound to answer any questions that will
subject him to a penalty, or to infamy."
Trial of Freind,
13 How.St.Tr. 1, 17.
There is great infamy involved in the present case, apart from
the loss of rights of citizenship under federal law which I have
already mentioned. The disclosure that a person is a Communist
practically excommunicates him from society. School boards will not
hire him.
See Adler v. Board of Education, 342 U.
S. 485. A lawyer risks exclusion from the bar (
In re
Anastaplo, 3 Ill. 2d
471, 121 N.E.2d 826); a doctor, the revocation of his license
to practice (
cf. Barsky v. Board of Regents, 347 U.
S. 442). If an actor, he is on a black list.
(
See Horowitz, Loyalty Tests for Employment in the Motion
Picture Industry, 6 Stan.L.Rev. 438.) And he will be able to find
no employment in our society except at the
Page 350 U. S. 454
lowest level, if at all. These facts make most persuasive the
words of Judge Grosscup in
United States v. James, supra,
at 264-265, written in 1894: .
"The battle for personal liberty seems to have been attained,
but, in the absence of the din and clash, we cannot comprehend the
meaning of all the safeguards employed. When we see the shield held
before the briber, the liquor seller, the usury taker, the duelist,
and the other violators of accepted law, we are moved to break or
cast it aside, unmindful of the splendid purpose that first threw
it forward. But whatever its disadvantages now, it is a fixed
privilege until taken down by the same power that extended it. It
is not certain, either, that it may not yet serve some useful
purpose. The oppression of crowns and principalities is
unquestionably over, but the more frightful oppression of selfish,
ruthless, and merciless majorities may yet constitute one of the
chapters of future history. In my opinion, the privilege of
silence, against a criminal accusation, guarantied by the fifth
amendment, was meant to extend to all the consequences of
disclosure."
It is no answer to say that a witness who exercises his Fifth
Amendment right of silence and stands mute may bring himself into
disrepute. If so, that is the price he pays for exercising the
right of silence granted by the Fifth Amendment. The critical point
is that the Constitution places the right of silence beyond the
reach of government. The Fifth Amendment stands between the citizen
and his government. When public opinion casts a person into the
outer darkness, as happens today when a person is exposed as a
Communist, the government brings infamy on the head of the witness
when it compels disclosure. That is precisely what the Fifth
Amendment prohibits.
Page 350 U. S. 455
Finally, it is said that we should not disturb
Brown v.
Walker because it is an old and established decision. But this
Court has always been willing to reexamine and overrule
constitutional precedents, even those old and established. In
Erie R. Co. v. Tompkins, 304 U. S. 64, this
Court overruled
Swift v. Tyson,
16 Pet. 1, which had been a rule of decision for 95 years.
United States v. South-Eastern Underwriters Assn.,
322 U. S. 533,
partly overruled
Paul v.
Virginia, 8 Wall. 168, which had been decided 75
years previously. In
Kilbourn v. Thompson, 103 U.
S. 168, the Court rejected some of the grounds of
decision in
Anderson v.
Dunn, 6 Wheat. 204, which had been standing for 59
years.
Brown v. Walker, decided by a bare majority of the
Court and now 60 years old, has no greater claim to sanctity than
the other venerable decisions which history showed had outlived
their usefulness or were conceived in error. And a rejection of
Brown v. Walker would certainly be far less disruptive of
a system of law than was the overruling of
Swift v. Tyson,
which affected the trial of every diversity case in the federal
courts.
[
Footnote 2/1]
See 64 Stat. 992, 50 U.S.C. § 784, as amended, 68 Stat.
777, 50 U.S.C. (Supp. II) § 784 (prohibition of employment in the
Federal Government and in defense facilities); 64 Stat. 993, 50
U.S.C. § 785 (ineligibility for a passport); 64 Stat. 1019, 50 U.S.
C§§ 811-826 (the possibility of internment); 40 Stat. 220, as
amended, 64 Stat. 427, 50 U.S.C. § 191; 33 CFR, 1955 Cum.Supp., §§
125.01, 125.29 (possibility of loss of employment as a
longshoreman).
And see 68 Stat. 776, 50 U.S.C. (Supp. II)
§ 843. Moreover, under the Subversive Activities Control Act, 64
Stat. 987, 50 U.S.C. § 781, discussed hereafter, it is a crime for
a person who is a member of a Communist organization registered
under the Act to engage in certain activity,
e.g., to hold
office or employment with any labor organization, to work for the
Government or have employment in any defense facility, § 5(a)(1),
or to apply for or use a passport § 6(a).
[
Footnote 2/2]
The impact of public identification on First Amendment freedoms
was acknowledged by Chief Justice Vinson in
American
Communications Assn. v. Douds, 339 U.
S. 382,
339 U. S. 402,
where he said:
"Under some circumstances, indirect 'discouragements'
undoubtedly have the same coercive effect upon the exercise of
First Amendment rights as imprisonment, fines, injunctions or
taxes. A requirement that adherents of particular religious faiths
or political parties wear identifying arm-bands, for example, is
obviously of this nature."
[
Footnote 2/3]
Dean Erwin N. Griswold of Harvard recently wrote:
"Where matters of a man's belief or opinions or political views
are essential elements in the charge, it may be most difficult to
get evidence from sources other than the suspected or accused
person himself. Hence, the significance of the privilege over the
years has perhaps been greatest in connection with resistance to
prosecution for such offenses as heresy or political crimes. In
these areas, the privilege against self-incrimination has been a
protection for freedom of thought and a hindrance to any government
which might wish to prosecute for thoughts and opinions alone."
The Fifth Amendment Today,
supra, 8-9.
[
Footnote 2/4]
Infamy as a sanction in Roman Law is traced in Tatarczuk, Infamy
of Law, Canon Law Studies No. 357, The Catholic University of
America (1954), 1-13. The penalties that Roman Law attached to
infamy are familiar: exclusion from the army, from all public
service, and from the exercise of certain public rights.
Id. at 10.
[
Footnote 2/5]
The cases arising under the first Clause of the Fifth Amendment
recognize that what may be considered an "infamous crime" within
the meaning of that Clause may be affected by changes of public
opinion from one age to another.
See Ex parte Wilson,
114 U. S. 417,
114 U. S. 427;
Mackin v. United States, 117 U. S. 348,
117 U. S. 351;
United States v. Moreland, 258 U.
S. 433,
258 U. S. 441,
451 (dissenting opinion by Brandeis, J.). In
United States v.
Waddell, 112 U. S. 76, the
Court refused to decide the "very important" question whether a
crime was made "infamous" when, upon conviction, the defendant
became "ineligible to any office, or place of honor, profit or
trust created by the Constitution or laws of the United States."
Justice Miller said:
"When we bring this language, which is not the sentence of the
court, but an indelible disgrace affixed to the party convicted by
the declaration of the law itself, into direct connection with the
language of the fifth article of amendment of the Constitution . .
. , there does arise a very serious question whether this crime is
not made an infamous one by the language of the statute, and
cannot, therefore, be prosecuted by information."
Id. at
112 U. S. 82.
The Court did not decide the question, because it had not been
argued nor presented to the lower courts.
And see Ex parte
Wilson, supra, at
114 U. S.
426.
The Fifth and Sixth Amendments place the grand and petit juries
as barriers between the government and the individual. The
provisions for those two juries help emphasize the function played
by the Bill of Attainder clauses of the Constitution.
See
Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. The guarantee of jury
trial and the prohibition of Bills of Attainder place beyond the
pale the imposition of infamy or outlawry by either the Executive
or the Congress. The penalties proscribed as Bills of Attainder
extend to disqualification for government employment and outlawry
from the professions.
See United States v. Lovett,
328 U. S. 303;
Ex parte
Garland, 4 Wall. 333;
Cummings
v. Missouri, 4 Wall. 277.
[
Footnote 2/6]
Beccaria seems to have been principally introduced to America by
Voltaire.
See Barr, Voltaire in America (1941), 23-24.
Barr states,
"Beccaria's Essay on Crimes and Punishment, with its famous
commentary by Voltaire, was known in America immediately after its
first appearance in France, and was the first of Voltaire's works
to be published in America. It was popular in lending libraries,
and as a quickly sold item in bookstores, because of general
interest in the formation of a new social order. A separate
monograph would be necessary to trace the influence of this
epoch-making tract."
Id. at 119.
[
Footnote 2/7]
See Chinard, The Commonplace Book of Thomas Jefferson
(1926), 298
et seq.
[
Footnote 2/8]
de Pastoret,
supra, 125-126, wrote:
"Penalties which, in France, produce infamy in law are (in
addition to corporal or afflictive penalties),
la claie,*
the iron collar or the pillory, civil death, censure, condemnation
of memory, condemnation to be led around on an ass wearing a straw
hat, degredation from the order of nobility, fine in a criminal
matter when a judgment confirms it . . . , public confession and
apology, forced alms in civil matters, permanent prohibition to
hold office."
*
Trainer sur la claie was the means used to drag the
condemned to execution. The same thing was done to the bodies of
suicides. For a description of this,
see Saint-Edme,
Dictionnaire De La Penalite Dans Toutes Les Parties Du Monde Connu
(1825), Vol. 3, 242-244.