The Founders and the Fifth

Some recent judicial exaltations of the Fifth Amendment call history as their witness. Of the Fifth Amendment “it is peculiarly true,” according to the late Justice Frankfurter, “that a page of history is worth a volume of logic.” These invocations of history have always puzzled me. The only Supreme Court opinion in which there is a serious exposition of the history of the Fifth Amendment, Twining v. New Jersey, decided in 1908, demonstrates most persuasively to me, at least, the validity of the conclusion that the Court reached in that case: viz., that the Founding Fathers regarded the privilege against self-incrimination as expedient, but not as a fundamental right. According to the ruling in that case, the State of New Jersey, not deeming the privilege expedient, might constitutionally reject it.

In the opinion from which the quotation from Justice Frankfurter has been taken, there is no attempt to show fault in Twining v. New Jersey, or to recount the history upon which their interpretations of the Amendment as made in those cases are professedly based. Professor Levy is an historian not a lawyer. His work is an historical one, not a legal treatise. He fully embraces the mystique which has surrounded the Fifth Amendment in the last fifteen years. I settled down with Origins of the Fifth Amendment, of which the text is 441 pages long, with 76 additional pages of notes in small type, to read that history which would not only be worth 517 volumes of logic but also would, presumably, show the character of the Amendment as a fundamental right, and justify the recent rhapsodic references to it and the sweeping interpretations given it. I was searching for the history which had been overlooked by the Supreme Court in Twining v. New Jersey, but had, perchance, been discovered, albeit not reported, by the Supreme Court in its decisions of the last few years.

CW

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C. Dickerman Williams

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Some recent judicial exaltations of the Fifth Amendment call history as their witness. Of the Fifth Amendment “it is peculiarly true,” according to the late Justice Frankfurter, “that a page of history is worth a volume of logic.” These invocations of history have always puzzled me. The only Supreme Court opinion in which there is a serious exposition of the history of the Fifth Amendment, Twining v. New Jersey, decided in 1908, demonstrates most persuasively to me, at least, the validity of the conclusion that the Court reached in that case: viz., that the Founding Fathers regarded the privilege against self-incrimination as expedient, but not as a fundamental right. According to the ruling in that case, the State of New Jersey, not deeming the privilege expedient, might constitutionally reject it.

In the opinion from which the quotation from Justice Frankfurter has been taken, there is no attempt to show fault in Twining v. New Jersey, or to recount the history upon which their interpretations of the Amendment as made in those cases are professedly based. Professor Levy is an historian not a lawyer. His work is an historical one, not a legal treatise. He fully embraces the mystique which has surrounded the Fifth Amendment in the last fifteen years. I settled down with Origins of the Fifth Amendment, of which the text is 441 pages long, with 76 additional pages of notes in small type, to read that history which would not only be worth 517 volumes of logic but also would, presumably, show the character of the Amendment as a fundamental right, and justify the recent rhapsodic references to it and the sweeping interpretations given it. I was searching for the history which had been overlooked by the Supreme Court in Twining v. New Jersey, but had, perchance, been discovered, albeit not reported, by the Supreme Court in its decisions of the last few years.