“Taking the Fifth” – invoking the right against self-incrimination – is a mainstay of mafia movies in which heinous criminals hide behind liberties guaranteed by the Bill of Rights.
Today guarantees such as due process are often portrayed as encumbrances that threaten security or justice by shackling authorities who are hunting the heinous, like terrorists; the conflict is usually expressed as “liberty versus security.” Although due process can occasionally protect a guilty man, the intended and overwhelming beneficiary is the man in the street who, whether he realizes it or not, is protected against the exercise of arbitrary power.
What would removing such a protection against self-incrimination look like? History provides an answer.
Although the right to not bear witness against oneself had precedent in the common law, it was not an enforced aspect of English courts until in the late sixteenth and early seventeenth century. Its roots are deep in the history of religious persecution. In 1534 Henry VIII denied papal authority and established the Church of England, which maintained most of the traditional Catholic rites. Thus Protestants were often tried for heresy; torture commonly accompanied trial.
Setting a Trap
In the late 1530s the Protestant John Lambert was burnt alive for heresy. During his trial Lambert became the first known Englishman to proclaim it was illegal under God and the common law to compel a man to accuse himself. Courts of the day required a defendant to answer a barrage of questions based on evidence gleaned from witnesses or informants without informing him of the charges being brought. The interrogation aimed at trapping a defendant into a confession. People were tried on mere suspicion and if found guilty, required to name other heretics. Silence was deemed a confession.
In 1563 John Foxe published the immensely influential Book of Martyrs, which has been called a “libertarian primer” on procedural rights. He argued for the rights to remain silent on incriminating questions as well as to know both the accusation and the accusers.
Famously, the Leveller and libertarian John Lilburne employed Foxe’s procedures in 1637, when he was brought before the Court of Star Chamber for circulating Puritan books. Rather than being charged, Lilburne was asked how he pled. Refusing to take the customary oath, he declined to answer questions that constituted bearing witness against himself; instead he appealed to his “freeborn right” to be justly tried. Lilburne was fined, whipped, pilloried, and sentenced to prison until he complied. While in the pillory he agitated against censorship until he was gagged; while in prison he penned an account of his brutal treatment titled The Work of the Beast.
In 1641, when the much-hated Star Chamber was abolished and the right to remain silent established in religious courts, Lilburne was largely credited. He then proceeded to fight for procedural rights in common-law courts. A series of trials stretched through the remaining 20 years of Lilburne’s life. To his growing number of supporters he became “Freeborn John.”
To the New World
Puritans who escaped religious prosecution to the New World carried Freeborn John’s ideals even though various colonial courts still used torture to elicit confessions and required defendants to testify against themselves. By the time the colonies were states, however, six had clauses in their Constitutions against self-incrimination and several others verged on including them. The right of a defendant against physical compulsion was established at the national level in the Bill of Rights’ Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself….”
The right against self-incrimination lies at the core of American due process. It is historically anchored in the quest for religious freedom, which was instrumental in founding America. It served as the strongest single protection against the use of torture by state authorities. Subsequently, the Supreme Court upheld the right.
Nevertheless, the right against self-incrimination is currently under concerted attack by those who pit it against “security.” For example, politicians such as House Homeland Security Committee Chairman Peter T. King claim that only American citizens have this right and thus the off-shore torture of foreigners by Americans does not violate due process. This contention converts a freeborn right into one that is “enjoyed” by a specific citizenry defined by government.
So-called “administrative matters,” such as the random or mass use of portable DNA testing devices by Homeland Security and the demand for encryption keys, are further testing the walls shielding Americans from self-incrimination.
Personal freedoms have been protected for so long that they are taken for granted as “the American Way,” as though liberty were indigenous and inherent to American soil. Meanwhile, the Bill of Rights is being eroded to a nub. The great wrongs corrected and prevented by its protections have been forgotten. Like forgotten history, they are destined to be repeated.