712
Breyer, J., dissenting
bility him who gives it"). Neither of these readings is any more speculative, as a textual or historical matter, than reading the Clause as the majority does, against its text, to restrict the universe of feared prosecutions upon which basis the privilege may be asserted.
What is more, there is no suggestion that Murphy's rule, applied to state and federal prosecutions, "has proven to be intolerable simply in defying practical workability." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854 (1992) (citing Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965)). Nor have the facts, or related principles of law, subsequently changed so much "as to have robbed the old rule of significant application or justification." 505 U. S., at 855 (citing Patterson v. McLean Credit Union, 491 U. S. 164, 173-174 (1989), and Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)). Indeed, it was the Murdock rule's legitimacy that, prior to Murphy, consistently divided the Court. See, e. g., Irvine v. California, 347 U. S. 128, 139-142 (1954) (Black, J., joined by Douglas, J., dissenting) ("I cannot agree that the [Fifth] Amend-ment's guarantee against self-incrimination testimony can be spirited away by the ingenious contrivance of using federally extorted confessions to convict of state crimes and vice versa"); Feldman v. United States, 322 U. S. 487, 494-503 (1944) (Black, J., joined by Douglas and Rutledge, JJ., dissenting).
The conclusion that I draw is that the rationale established through Murphy's precedent governs. That rationale interprets the privilege as applicable at the least where a person faces a substantial threat of prosecution in another jurisdiction. And that reading of the privilege favors Balsys here.
II
Precedent aside, I still disagree with the Court's conclusion. As Murphy said, and as the Second Circuit reiterated, the Fifth Amendment reflects not one, but several different
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