Broad Overhang

“God, James,” Wilde once said in response to a Whistler epigram, “I wish I’d said that.” “Don’t worry, Oscar,” Whistler replied, “You will.” This reviewer, similarly, wishes that the political scientists of America, himself included, had not left to someone outside their profession the writing of Common Sense and the Fifth Amendment (by Sidney Hook: Criterion Books, $3.00). And he confidently predicts that they, himself included, will be plagiarizing its contents for many a long day—or, failing that, will go on talking the kind of nonsense about self-incrimination that all of us were brought up on, and that has enabled the Communists to transform the privilege against self-incrimination into one of their most potent weapons.

“No person… shall be compelled in any criminal case to be a witness against himself.” So reads the non-self-incrimination clause of the U.S. Constitution. But nothing could matter less: our present law of selfincrimination, as laid down by the courts, is related to it only as a broad overhang is related to its foundation. The “privilege,” today, is by no means confined to criminal cases—or even (since it applies in congressional hearings) to cases in the courts of law. It applies now not merely to defendants, but to all witnesses. It excuses witnesses from answering not merely questions the replies to which would be directly self-incriminating, but also any question a truthful answer to which might provide a “link in the chain of evidence” that might result in prosecution, and any question about the witness’ grounds for thinking that truthful answers might incriminate him. It extends to many “questions in which by common agreement his answer could not possibly incriminate him.” And it has been held to include not merely the privilege of refusing to answer, but the privilege of doing so without giving rise to any inference about one’s guilt, no matter how inescapable, in pure logic, that inference may be.

WK

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Willmoore Kendall

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“God, James,” Wilde once said in response to a Whistler epigram, “I wish I’d said that.” “Don’t worry, Oscar,” Whistler replied, “You will.” This reviewer, similarly, wishes that the political scientists of America, himself included, had not left to someone outside their profession the writing of Common Sense and the Fifth Amendment (by Sidney Hook: Criterion Books, $3.00). And he confidently predicts that they, himself included, will be plagiarizing its contents for many a long day—or, failing that, will go on talking the kind of nonsense about self-incrimination that all of us were brought up on, and that has enabled the Communists to transform the privilege against self-incrimination into one of their most potent weapons.

“No person… shall be compelled in any criminal case to be a witness against himself.” So reads the non-self-incrimination clause of the U.S. Constitution. But nothing could matter less: our present law of selfincrimination, as laid down by the courts, is related to it only as a broad overhang is related to its foundation. The “privilege,” today, is by no means confined to criminal cases—or even (since it applies in congressional hearings) to cases in the courts of law. It applies now not merely to defendants, but to all witnesses. It excuses witnesses from answering not merely questions the replies to which would be directly self-incriminating, but also any question a truthful answer to which might provide a “link in the chain of evidence” that might result in prosecution, and any question about the witness’ grounds for thinking that truthful answers might incriminate him. It extends to many “questions in which by common agreement his answer could not possibly incriminate him.” And it has been held to include not merely the privilege of refusing to answer, but the privilege of doing so without giving rise to any inference about one’s guilt, no matter how inescapable, in pure logic, that inference may be.