The self-incrimination clause of the Fifth Amendment is well-known to most Americans: No one has to incriminate him- or herself.
It is easy to understand why your spoken words are protected. Verbal “confessions” are probably the most powerful admission that the government has against you in a criminal proceeding: You said that you committed the crime with which you are charged.
But why is the self-incrimination clause limited to only your verbal utterances, when the plain meaning of the clause as crafted by the Founders must be read more broadly?
Today, if you blow into a Breathalyzer, your air sample will send the message that alcohol is in your system. If you give a blood or urine test, that too will tell law enforcement what’s in your system. If you give a handwriting sample, you may be convicted of forgery.
This is not an exhaustive list, but it gives you an idea of how many times each day we incriminate ourselves. No one seems to think much about it.
Our current, limited definition of self-incrimination does not reflect the intentions of the Founders who ratified the Constitution and added further citizen protections in the Bill of Rights.
The provisions of the Bill of Rights emerged from earlier, similar state declarations (such as the Virginia Declaration of Rights) and the experience of the Revolution.
After the adoption of the 14th Amendment following the Civil War, the Supreme Court determined to “incorporate” most of the Bill of Rights’ provisions to activities by the states. This has continued to occur on a piecemeal basis. Today, most provisions of the Bill of Rights apply in some fashion to persons acting on behalf of the states.
How did we get to this wholesale surrender of what would seem to be our obvious constitutional rights?
The answer is simple: As new technologies and policing techniques came along, it became easier for law enforcement officials to use self-incriminating behavior to enforce the laws, rather than honor the plain meaning of the self-incrimination cause. For the most part, the Supreme Court has gone along with this notion, reinterpreting the self-incrimination clause so that now it is almost unrecognizable.
Take drunken driving. The government may adopt reasonable laws and regulations for public health, safety, and welfare through its police powers. A police officer may observe your driving poorly or recklessly, or, when you exit your car, can observe you stumbling around.
No blood test or Breathalyzer is needed; his or her observation is sufficient. So why should you be forced to incriminate yourself by submitting to a Breathalyzer test?
Why has the Supreme Court allowed the government to frame the issue in such a manner that public safety demands that a suspect surrender his or her constitutional rights?
Even more worrisome: Why should a driver be forced to stop at a sobriety checkpoint when the government has no individualized suspicion of misconduct? In one of the opinions of the Supreme Court on sobriety checkpoints, a justice noted that fewer than three-tenths of 1 percent of the drivers stopped were found to be impaired.
The trend toward chipping away at our constitutional protection against self-incrimination continues. The recent 5-4 decision of the Supreme Court that allows DNA samples to be acquired at police bookings shows this.
Throughout our history, the Constitution and Bill of Rights have stood as bedrocks of our constitutional democracy. There has never been a time when public safety has not been threatened to one degree or another. But our Constitution and Bill of Rights were created to protect us from an overly aggressive assault on individual rights by government.
Isn’t it time we reconsider the rights we have forfeited in the name of a threat to “public safety” and regain our cherished constitutional right not to incriminate ourselves?
The government may lock us up for violating its laws. It should not be allowed to compel us to assist it in aiding in our own incarceration.
Bruce Comly French is a law professor at Ohio Northern University in Ada, Ohio.
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