Cite as: 524 U. S. 666 (1998)
Opinion of the Court
D
Although the Court and Justice Breyer's dissent differ on details, including some considerations of policy addressed in Part IV, infra, our basic disagreement with that dissent turns on three points. First, we start with what we think is the most probable reading of the Clause in its Fifth Amendment context, as limiting its principle to concern with prosecution by a sovereign that is itself bound by the Clause; the dissent instead emphasizes the Clause's facial breadth as consistent with a broader principle. Second, we rely on the force of our precedent, notably Murdock, as confirming this same-sovereign principle, as adapted to reflect the post-Malloy requirement of immunity effective against both sovereigns subject to the one privilege under the National Constitution; the dissent attributes less force to Murdock, giving weight to its tension with the Saline Bank language, among other things. Third, we reject Murphy's restatement of the common-law background and read none of the common-law cases as authority inconsistent with our contextual reading of the Clause, later confirmed by precedent such as Murdock; the dissent finds support in the common-law cases for Murphy's historical reexamination and the broader reading of the Clause. In the end, our contextual reading of the Clause, combined with the Murdock holding, places a burden on any-formally adopted the rule in Murphy" (footnotes omitted)); Capra, The Fifth Amendment and the Risk of Foreign Prosecution, N. Y. L. J., Mar. 8, 1991, p. 3 ("[D]espite Justice Goldberg's assertions in Murphy, it is clear that there was never a 'true' or uniform English rule. . . . [T]o the extent that the English rule would be pertinent to the Fifth Amendment privilege, it would have had to exist at the time the Fifth Amendment was adopted. Yet, as even Justice Goldberg admitted in Murphy, the English cases involving independent sovereigns were decided more than 60 years after the Fifth Amendment was adopted"); see also Law Reform Committee, Sixteenth Report, 1967, Cmnd. 3472, ¶11, p. 7 (explaining that English common law on the question is not "wholly consistent").
Murphy's reexamination of history also adopted the illegitimate reading of Saline Bank, rejected supra, at 678-679.
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