Cite as: 524 U. S. 666 (1998)
Breyer, J., dissenting
has the majority to believe that Murphy subscribes to, or depends in any way upon, this phrasing of the privilege's "principle" rather than upon the critically different "principle" I suggested above, i. e., the principle that "courts may not in fairness compel a witness who reasonably fears prosecution to furnish testimony that may be used to prove his guilt?"
The majority points to two relevant Murphy statements. In the first, Murphy said that Malloy v. Hogan, 378 U. S. 1 (1964), which incorporated the Fifth Amendment privilege as part of the Fourteenth Amendment's Due Process Clause, "necessitates a reconsideration" of United States v. Murdock, 284 U. S. 141 (1931), which had held that the Fifth Amendment protected an individual only from prosecutions by the Federal Government. Murphy, 378 U. S., at 57. In the second, Murphy mentioned, as one of many items of support for its analysis, that most Fifth Amendment policies are defeated
"when a witness 'can be whipsawed into incriminating himself under both state and federal law even though' the constitutional privilege against self-incrimination is applicable to each." Id., at 55 (quoting Knapp v. Schweitzer, 357 U. S. 371, 385 (1958) (Black, J., dissenting)).
Since the first statement mentions only a reason for reconsidering Murdock, since the second offers support on either analysis, and since neither refers to any "alternative ration-al[e]" for decision, ante, at 680, the majority's evidence for its reinterpretation of Murphy seems rather skimpy.
Now consider the reasons for believing that Murphy rests upon a different rationale—a rationale that, by focusing upon the basic nature and history of the underlying right, rejects Murdock's "same sovereign" rule. First, Murphy holds that the "constitutional privilege" itself, not that privilege together with principles of federalism, "protects . . . a federal
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