Let's Not Give History Too Much Credit (or Blame): Thomas Davies on the Fifth Amendment Privilege against Self-Incrimination

Professor Thomas Y. Davies's recent attacks on the Supreme Court's view of the historical foundations of the Confrontation Clause are part of his broader campaign against the the Court's persistent misreading of history. In at least some of his published work Davies suggests that the Court's unwitting falsification of 18th century practices and understandings contributes to the trivialization of important constitutional rights and doctrines. In a 2003 article recently posted to SSRN, "Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right against Self-Incrimination as a 'Trial Right' in Chavez v. Martinez," 70 Tennesssee Law Review 987 (2003), Professor Davies concludes (foonotes omitted):

The point of this article is not that we should return to the original interpretation of the Fifth Amendment. That obviously is not feasible at this late date. Moreover, although the rigorously accusatory criminal procedure of the framing era may have been adequate for criminal justice in close communities, it would not be adequate for today’s mobile, urban society of strangers. There is a need for professional police and for proactive law enforcement and investigation; hence, police investigation, including interrogation, in some form, surely is here to stay.

Instead, my point is that assessments of the current status of the Fifth Amendment right should not proceed under the false notion that the current treatment of that right is equivalent to the right that the Framers intended to preserve. That false notion is deleterious because it tends to give an aura of inevitability to the current treatment of the right, and that aura tends to block critical appraisal of the choices that actually have shaped its content.

The authentic history of the Fifth Amendment right is a story of a right that has been shrunk by a drastic expansion of governmental criminal justice power, including governmental interrogation power. Moreover, that shrinkage has been permitted, to a large degree, because of the inattention and inaction of the Supreme Court. In particular, the Court initially failed to ask, or perhaps even perceive, the hard questions that were posed by the emergence of police interrogation as an unprecedented form of governmental interrogation. Despite the obvious danger of compelled self-incrimination in the backrooms of the police station, the Court failed to respond by developing a coherent view of what the Fifth Amendment right should mean regarding police interrogation. In addition, although the Miranda decision finally made a modest beginning in applying the Fifth Amendment right to impose conditions on custodial interrogation, even that regime of warnings and waiver has been undercut by more recent decisions. In fact, the opportunities for police interrogation of suspects have recently been expanded by decisions that have lowered the standard for taking suspects into custody, or that have permitted custodial arrests for minor offenses, even if such arrests amount to pretexts.

What is still necessary is for the Justices of the Supreme Court to take the question of what the Fifth Amendment right should mean today more seriously than they did in Chavez. At a minimum, the Justices should stop pretending that they are merely following the dictates of the text or original meaning of constitutional provisions when they are actually reinventing that text.

Regardless of what one might think of the claim for section 1983 damages in Chavez, deciding the question of whether there was a violation of the Fifth Amendment right merely on the basis of an acontextual, ahistorical, and essentially arbitrary definition of the word “case” in the 200-year-old text hardly constitutes meaningful constitutional interpretation.

The question that still needs to be addressed seriously and directly is what kind of police and criminal justice power is consistent with a free and civil society. Specifically, when is police interrogation compatible with a meaningful conception of a right against compelled self-accusation, and what conditions should be mandated when such interrogation is permitted? Whatever one might think of the appropriateness or efficacy of the specific regime of warnings and waiver that the Warren Court required in Miranda, that decision at least began to move—albeit haltingly—in the direction of addressing these crucial but long overlooked issues. The claim in Chavez, that the Fifth Amendment right is merely a trial right, is a large step in the opposite direction.