Cite as: 538 U. S. 760 (2003)
Souter, J., concurring in judgment
Justice Souter delivered an opinion, Part II of which is the opinion of the Court and Part I of which is an opinion concurring in the judgment.*
I
Respondent Martinez's claim under 42 U. S. C. § 1983 for violation of his privilege against compelled self-incrimination should be rejected and his case remanded for further proceedings. I write separately because I believe that our decision requires a degree of discretionary judgment greater than Justice Thomas acknowledges. As he points out, the text of the Fifth Amendment (applied here under the doctrine of Fourteenth Amendment incorporation) focuses on courtroom use of a criminal defendant's compelled, self-incriminating testimony, and the core of the guarantee against compelled self-incrimination is the exclusion of any such evidence. Justice Ginsburg makes it clear that the present case is very close to Mincey v. Arizona, 437 U. S. 385 (1978), and Martinez's testimony would clearly be inadmissible if offered in evidence against him. But Martinez claims more than evidentiary protection in asking this Court to hold that the questioning alone was a completed violation of the Fifth and Fourteenth Amendments subject to redress by an action for damages under § 1983.
To recognize such a constitutional cause of action for compensation would, of course, be well outside the core of Fifth Amendment protection, but that alone is not a sufficient reason to reject Martinez's claim. As Justice Harlan explained in his dissent in Miranda v. Arizona, 384 U. S. 436 (1966), "extension[s]" of the bare guarantee may be warranted, id., at 510, if clearly shown to be desirable means to protect the basic right against the invasive pressures of contemporary society, id., at 515. In this light, we can make sense of a
*Justice Breyer joins this opinion in its entirety. Justice Stevens, Justice Kennedy, and Justice Ginsburg join Part II of this opinion.
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