336
Scalia, J., dissenting
when the Fourteenth Amendment was adopted, and three of them did not prohibit adverse inferences from failure to testify.1
The Court's decision in Griffin, however, did not even pretend to be rooted in a historical understanding of the Fifth Amendment. Rather, in a breathtaking act of sorcery it simply transformed legislative policy into constitutional command, quoting a passage from an earlier opinion describing the benevolent purposes of 18 U. S. C. § 3481, and then decreeing, with literally nothing to support it: "If the words 'Fifth Amendment' are substituted for 'act' and for 'statute,' the spirit of the Self-Incrimination Clause is reflected." 380 U. S., at 613-614. Imagine what a Constitution we would have if this mode of exegesis were generally applied—if, for example, without any evidence to prove the point, the Court could simply say of all federal procedural statutes: "If the words 'Fifth Amendment' are substituted for 'act' and for 'statute,' the spirit of the Due Process Clause is reflected." To my mind, Griffin was a wrong turn—which is not cause enough to overrule it, but is cause enough to resist its extension.
II
The Court asserts that it will not "adopt an exception" to Griffin for the sentencing phase of a criminal case. Ante, at 328. That characterization of what we are asked to do is evidently demanded, in the Court's view, by the very text of the Fifth Amendment: The phrase "any criminal case" requires us to "accord the privilege the same protection in the sentencing phase . . . as that which is due in the trial phase of the same case." Ante, at 329. That is demonstrably not so.
1 The statutes prohibiting an adverse inference were: 1866 Mass. Acts, ch. 260; 1866 Vt. Laws No. 40; 1867 Nev. Stats., ch. XVIII; 1867 Ohio Leg. Acts 260; 1868 Conn. Laws, ch. XCVI; 1868 Minn. Laws, ch. LXX. The statutes not prohibiting an adverse inference were: 1864 Me. Acts, ch. 280; 1866 Cal. Stats., ch. DCXLIV; 1866 S. C. Acts No. 4780.
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