Cite as: 524 U. S. 666 (1998)
Breyer, J., dissenting
from the brief of counsel"); and it is plausible now. That minimalist conclusion is sufficient for present purposes. Even if Murdock's 3-sentence, and Murphy's 20-page, historical analyses were equally plausible, we would need something more to abandon Murphy, for it is the most recent, and thereby governing, precedent.
Nor can I find any other reason for rejecting Murphy and, thereby, resurrecting Murdock. The Fifth Amendment's language permits Murphy's construction, for it says "any criminal case." The history of the Amendment's enactment simply does not answer the question about whether or not it applied where there is a substantial danger of prosecution in another jurisdiction. See United States v. Gecas, 120 F. 3d 1419, 1435 (CA11 1997) (en banc) (Fifth Amendment privilege "has virtually no legislative history"); Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1123 (1994) (Fifth Amendment's legislative history "adds little to our understanding of the history of the privilege"). It is possible that the language, "in any criminal case," was aimed at limiting protection to compelled testimony against penal interests, a reading consistent with the Court's contemporary understanding of the Clause. See, e. g., United States v. Ward, 448 U. S. 242, 248-255 (1980) (rejecting claim to privilege based on fear of civil penalty, in part, because Clause "is expressly limited to 'any criminal case' "); 5 The Founders' Constitution 262 (P. Kurland & R. Lerner eds. 1987) (indicating that phrase "in any criminal case" was proposed by Representative Lawrence to ensure that the Clause was not "in some degree contrary to laws passed"). And it is also possible that the language was intended to limit the proceedings in which the privilege could be claimed to criminal cases, which understanding the Court rejected long ago. See McCarthy v. Arndstein, 266 U. S. 34, 40 (1924) (The privilege "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsi-
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