Where Did the Fifth Amendment Come From?
Former Enron Chairman Kenneth Lay asserted his Fifth Amendment rights before the Senate Commerce Committee today, “respectfully declining to answer” any of the committee’s questions. What is the history behind, and rationale for, the Fifth Amendment right not to testify against oneself? The Fifth Amendment to the U.S. Constitution provides that “no person … shall be compelled in any criminal case to be a witness against himself.” The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission—British courts of equity that operated from 1487-1641. These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient “proof” came from browbeating confessions out of the accused. These courts required the accused to answer any question put to him, without advance notice of his accusers, the charges against him, or the evidence amassed. Wit
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Did it spring full-formed from the brow of Zeus? Did it come straight out of hell like the proverbial bat? Legal scholar Leonard Levy gives us the inside skinny on the historical background of the Fifth Amendment. Levy is thorough, that’s for sure. He has rightly earned a reputation as a careful scholar who doesn’t slant the historical record just to make a point, a tendency all too common among lawyers, even academic lawyers who ought to know better. Levy likes to follow the historical record wherever it leads. Not only does he lay out the evidence honestly, he does so in an interesting manner. The development of the privilege against self-incrimination in England is linked to the history of the government’s war on religious dissent, and is also linked to the battle waged by the common-law courts for supremacy over other courts. Levy takes us into the history of these struggles, and does so in a way that certainly held my interest. Henry VIII created a secessionist Church
