Cite as: 530 U. S. 27 (2000)
Thomas, J., concurring
e. g., The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents (Dec. 13, 1787) (same suggestion), in 2 Schwartz, supra, at 665; 2 Debates on the Federal Constitution 111 (J. Elliot 2d ed. 1854) (Mr. Holmes, Mass., Jan. 30, 1788) (objecting that nothing prohibits compelling a person "to furnish evidence against himself"). Similarly worded proposals to protect against compelling a person "to furnish evidence" against himself came from prominent voices outside the conventions. See The Federal Farmer No. 6 (1787), in Cogan, supra, at 333; Letter of Brutus, No. 2 (1788), in 1 Schwartz, supra, at 508.
In response to such calls, James Madison penned the Fifth Amendment. In so doing, Madison substituted the phrase "to be a witness" for the proposed language "to give evidence" and "to furnish evidence." But it seems likely that Madison's phrasing was synonymous with that of the proposals. The definitions of the word "witness" and the background history of the privilege against self-incrimination, both discussed above, support this view. And this may explain why Madison's unique phrasing—phrasing that none of the proposals had suggested—apparently attracted no attention, much less opposition, in Congress, the state legislatures that ratified the Bill of Rights, or anywhere else. See 3 W. LaFave, J. Israel, & N. King, Criminal Procedure 290-291 (2d ed. 1999). In fact, the only Member of the First Congress to address self-incrimination during the debates on the Bill of Rights treated the phrases as synonymous, restating Madison's formulation as a ban on forcing one "to give evidence against himself." 1 Annals of Cong. 753-754 (J. Gales ed. 1834) (statement of Rep. Laurance).3
3 Representative Laurance was no stranger to the Self-Incrimination Clause; he was responsible for the limiting phrase "in any criminal case," which was added to the Clause without any recorded opposition. See L. Levy, Origins of the Fifth Amendment, The Right Against Self-Incrimination 424-427 (1968). In support of this suggestion, Laurance
53
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007