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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.
 

Friday, March 26, 2004

From Crescat Sententia, an interview with Eugene Volokh. Here's question #8, and its response:

8: Most (hopefully all) scholars of Constitutional Law can name some laws that they think are constitutional but undesirable-- things that the government legally can do, but shouldn't anyway. What about the reverse? Are there any laws or policies that you think would be on-the-whole good policies to have, if only the Constitution permitted them?
 
I'm not an expert on this, but my sense is that the privilege against self-incrimination is a bad idea. I don't see why the prosecutors shouldn't be able to subpoena the defendant and ask him to explain just where he was the night of this-and-such. Sure, the privilege is a check on government power -- but it's not clear to me that it's the right sort of check on government power, and that its benefits outweigh its tendency to foster injustice (both acquittal of the guilty and, in some cases, conviction of the innocent). Still, it's right in there in the constitution, and it has to be enforced.
Here we can see the modern lawyer's perspective: Perjury is no big deal, or, if it is, it is only a problem for the legal system itself. Such persons see things like an oath, "to tell the truth, the whole truth, and nothing but the truth, so help you God," as nothing more than quaint and amusing forms set down by our ancestors, of no relevance outside the courtroom. But the privilege against self-incrimination arises from the refusal to present a guilty defendant with the intolerable dilemma, either confess the crime (and thus suffer the temporal punishment) or violate an oath taken before God (and thus suffer eternal torment).

It's a deliberate concession to religion, and it's written into the Constitution itself, so it doesn't quite square with this fragment from Volokh's answer to question 15:

I think the Court's [] Establishment Clause doctrine is mostly right, at least at the level of the big picture; ...
-- since any court applying current doctrine, once confronted with the justification, would pretty much be forced to conclude, the privilege is an unconstitutional establishment of religion. It's a good thing, then, that the Fifth Amendment stands in the way of any such conclusion.

-- posted by Clayton 3/26/2004 06:51:00 PM


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