Ullmann v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I would reverse the judgment of conviction. I would base the reversal on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, or, in the alternative, I would overrule the five-to-four decision of Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, and adopt the view of the minority in that case that the right of silence created by the Fifth Amendment is beyond the reach of Congress.

First, as to the Boyd case. There are numerous disabilities created by federal law that attach to a person who is a Communist. These disabilities include ineligibility for employment in the Federal Government and in defense facilities, disqualification for a passport, the risk of internment, the risk of loss of employment as a longshoreman-to mention only a few. These disabilities imposed by federal law are forfeitures within the meaning of our cases and as much protected by the Fifth Amendment as criminal prosecution itself. But there is no indication that the Immunity Act, 68 Stat. 745, 18 U.S.C. (Supp. II) § 3486, 18 U.S.C.A. § 3486, grants protection against those disabilities. The majority will not say that it does. I think, indeed, that it must be read as granting only partial, not complete, immunity for the matter disclosed under compulsion. Yet, as the Court held in Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, an immunity statute to be valid must 'supply a complete protection from all the perils against which the constitutional prohibition was designed to guard * *  * .'

Boyd v. United States, supra, involved a proceeding to establish a forfeiture of goods alleged to have been fraudulently imported without payment of duties. The claimants resisted an order requiring the production of an invoice to be used against them in the forfeiture proceedings. The Court in an opinion by Mr. Justice Bradley sustained the defense of the Fifth Amendment. The Court said, 'A witness, as well as a party, is protected by the law from being compelled to give evidence that tends to criminate him, or to subject his property to forfeiture.' 116 U.S. at page 638, 6 S.Ct. at page 536, 29 L.Ed. 746. And see Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150. The contrary holding was deemed hostile to the spirit of our institutions:

' * *  * any compulsory discovery by extorting the party's      oath, or compelling the production of his private books and      papers, to convict him of crime, or to forfeit his property,      is contrary to the principles of a free government. It is     abhorrent to the instincts of an Englishman; it is abhorrent      to the instincts of an American. It may suit the purposes of     despotic power, but it cannot abide the pure atmosphere of      political liberty and personal freedom.' 116 U.S. at pages      631-632, 6 S.Ct. at page 533, 29 L.Ed. 746.

The forfeiture of property on compelled testimony is no more abhorrent than the forfeiture of rights of citizenship. Any forfeiture of rights as a result of compelled testimony is at war with the Fifth Amendment.

The Court apparently distinguishes the Boyd case on the ground that the forfeiture of property was a penalty affixed to a criminal act. The loss of a job and the ineligibility for a passport are also penalties affixed to a criminal act. For the case of Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, makes plain that membership in the Communist Party is a crucial link of evidence for conviction under the Smith Act, 54 Stat. 671, as amended, 62 Stat. 808, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. And see Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170. When a man loses a job because he is a Communist, there is as much a penalty suffered as when an importer loses property because he is a tax evader. When a man loses his right to a passport because he is a Communist, there is as much a penalty suffered as when property is lost for violation of the revenue laws. If there was a penalty suffered in the Boyd case, there are penalties suffered here. Both are hitched to criminal acts. And the Constitution places the property rights involved in the Boyd case no higher than the rights of citizenship involved here.

The Court may mean that if disqualification for government employment or ineligibility for a passport is a forfeiture within the meaning of the Boyd case, Congress has lifted these disabilities in exchange for the witness' testimony. Congress, I think, will be surprised to hear this. There is nothing in the legislative history that would suggest that Congress was willing to pay any such price for the testimony. If the disabilities which attach under existing law are forfeitures, the Court should strike down the Act. If Congress chooses to enact a new Immunity Act broad enough to protect against all forfeitures, it is free to do so. The Court seems to commit Congress to a policy that there is no indication Congress favors.

We should apply the principle of the Boyd case to the present one and hold that since there is no protection in the Immunity Act against loss of rights of citizenship, the immunity granted is less than the protection afforded by the Constitution. Certainly personal freedom has at least as much constitutional dignity as property.

Second, as to Brown v. Walker. The difficulty I have with that decision and with the majority of the Court in the present case is that they add an important qualification to the Fifth Amendment. The guarantee is that no person 'shall be compelled in any criminal case to be a witness against himself.' The majority does not enforce that guarantee as written but qualifies it; and the qualification apparently reads, 'but only if criminal conviction might result.' Wisely or not, the Fifth Amendment protects against the compulsory self-accusation of crime without exception or qualification. In Counselman v. Hitchcock, supra, 142 U.S. at page 562, 12 S.Ct. at page 198, 35 L.Ed. 1110, Mr. Justice Blatchford said, 'The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.'

The 'mischief' to be prevented falls under at least three heads.

(1) One 'mischief' is not only the risk of conviction but the risk of prosecution. Mr. Justice Shiras, one of the four dissenters in Brown v. Walker, alluded to this difficulty when he declared that the immunity statute involved in that case was unconstitutional:

' * *  * all that can be said is, that the witness is not      protected, by the provision in question from being      prosecuted, but that he has been furnished with a good plea      to the indictment, which will secure his acquittal. But is     that true? Not unless the plea is sustained by competent     evidence. His condition, then, is that he has been prosecuted, been compelled     presumably, to furnish bail, and put to the trouble and      expense of employing counsel and furnishing the evidence to      make good his plea.' 161 U.S. at page 621, 16 S.Ct. at page     660, 40 L.Ed. 819.

The risk of prosecution is not a risk which the wise take lightly. As experienced a judge as Learned Hand once said, 'I must say that, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and of death.' See Frank, Courts on Trial (1949), 40. A part of the dread in a case such as this is the chain of events that may be put in motion once disclosure is made. The truth is, I think, that there is no control left, once the right of secrecy is broken. For the statute protects the accused only on account of the 'transaction, matter, or thing' concerning which he is compelled to testify and bars the use as evidence of the 'testimony so compelled.' The forced disclosure may open up vast new vistas for the prosecutor with leads to numerous accusations not within the purview of the question and answer. What related offenses may be disclosed by leads furnished by the confession? How remote need the offense be before the immunity ceases to protect it? How much litigation will it take to determine it? What will be the reaction of the highest court when the facts of the case reach it?

It is, for example, a crime for a person who is a member of a Communist organization registered under the Subversive Activities Control Act, 64 Stat. 987, 50 U.S.C. § 781, 50 U.S.C.A. § 781, to be employed by the United States, to be employed in any defense facility, to hold office or employment with any labor organization, § 5(a)(1), or to apply for a passport or to use a passport. § 6(a). The crime under that Act is the application for a passport, the use of a passport, or employment by one of the named agencies, as the case may be. Are those crimes included within the 'transaction, matter, or thing' protected by the Immunity Act?

The Taft-Hartley Act, 61 Stat. 146, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), requires officers of labor organizations to file non-Communist affidavits as a condition to the exercise by the National Labor Relations Board of its power to make investigations or to issue complaints. A witness before a grand jury or congressional committee is compelled under the force of the Immunity Act to testify. He testifies that he is not a member of the Communist Part. He then files an affidavit under the Taft-Hartley Act to that effect. May he be prosecuted for filing a false affidavit?

These are real and dread uncertainties that the Immunity Act does not remove. They emphasize that one protective function of the Fifth Amendment is at once removed when the guarantee against self-incrimination is qualified in the manner it is today.

The Court leaves all those uncertainties to another day, saying that the immunity granted by Congress will extend to its constitutional limits and that those constitutional limits will be determined case by case in future litigation. That means that no one knows what the limits are. The Court will not say. Only litigation on a distant day can determine it.

The concession of the Court underlines my point. It shows that the privilege of silence is exchanged for a partial, undefined, vague immunity. It means that Congress has granted far less than it has taken away.

(2) The guarantee against self-incrimination contained in the Fifth Amendment is not only a protection against conviction and prosecution but a safeguard of conscience and human dignity and freedom of expression as well. My view is that the Framers put it beyond the power of Congress to compel anyone to confess his crimes. The evil to be guarded against was partly self-accusation under legal compulsion. But that was only a part of the evial. The conscience and dignity of man were also involved. So too was his right to freedom of expression guaranteed by the First Amendment. The Framers, therefore, created the federally protected right of silence and decreed that the law could not be used to pry open one's lips and make him a witness against himself.

A long history and a deep sentiment lay behind this decision. Some of those who came to these shores were Puritans who had known the hated oath ex officio used both by the Star Chamber and the High Commission. See Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, Essays in History and Political Theory (1936), c. VII. They had known the great rebellion of Lilburn, Cartwright and others against those instruments of oppression. Cartwright had refused to take the oath ex officio before the High Commission on the grounds that 'hee thought he was not bound by the lawes of God so to doe.' Pearson, Thomas Cartwright and Elizabethan Puritanism 1535-1603 (1925), 318. Lilburn marshalled many arguments against the oath ex officio, one of them being the sanctity of conscience and the dignity of man before God:

'as for that Oath that was put upon me, I did refuse to take     it as a sinful and unlawful oath, and by the strength of my      God enabling me, I will never take it, though I be pulled in      pieces by wild horses, as the ancient Christians were by the bloody tyrants in the      Primitive Church; neither shall I think that man a faithful      subject of Christ's kingdom, that shall at any time hereafter      take it, seeing the wickedness of it hath been so apparently      laid open by so many, for the refusal whereof many do suffer      cruel persecution to this day.' The Trial of Lilburn and      Wharton, 3 How.St.Tr. 1315, 1332.

The literature of the Levellers, of whom Lilburn was a leader, abounds in this attitude. In 1948, there was published a Declaration in the form of a petition, item 12 of which reads:

'That all Statutes for all kinds of Oaths, whether in     Corporations, Cities, or other, which insnare conscientious      people, as also other Statutes, injoyning all to hear the      Book of Common Prayer, be forthwith repealed and nulled, and      that nothing be imposed upon the consciences of any to compel      them to sin against their own consciences.' Haller & Davies,      The Leveller Tracts 1647-1653 (1944), 112.

In 1653, Lilburn published The Just Defence in which he wrote:

'Another fundamental right I then contended for, was, that no     mans conscience ought to be racked by oaths imposed, to      answer to questions concerning himself in matters criminal,      or pretended to be so.' Haller & Davies, id., at 454.

These are important declarations, as they throw light on the meaning of 'compelled' as used in the Fifth Amendment.

The amending process that brought the Fifth Amendment into the Constitution is of little aid in our problem of interpretation. But there are indications in the debates on the Constitution that the evil to be remedied was the use of torture to exact confessions. See, e.g., Virginia Debates (2d ed. 1805), 221, 320-321; 2 Elliot's Debates (2d ed. 1876), 111. It was, indeed, the condemnation of torture to exact confessions that was written into the early law of the American Colonies. Article 45 of the Massachusetts Body of Liberties of 1641 provided in part, 'No man shall be forced by Torture to confesse any Crime against himself nor any other * *  * .' Connecticut adopted a similar provision. Laws of Connecticut Colony (1865 ed.), 65. Virginia soon followed suit: ' * *  * noe law can compell a man to sweare against himselfe in any matter wherein he is lyable to corporall punishment.' Hening, Statutes at Large, Vol. II, 422.

The compulsion outlawed was moral compulsion as well as physical compulsion. An episode in the administration of Governor William Bradford of the Plymouth Plantation illustrates the point. He sought advice from his ministers asking, 'How farr a magistrate may extracte a confession from a delinquente, to acuse him selfe of a capitall crime * *  * .' The three ministers-Ralph Partrich, John Reynor, and Charles Chancy-were unanimous in concluding that the oath was against both the laws of God and the laws of man. Partrich's answer is typical:

'(The magistrate) may not extracte a confession of a capitall     crime from a suspected person by any violent means, whether      it be by an oath imposed, or by any punishment inflicted or      threatened to be inflicted.' Bradford, History of Plymouth      Plantation, Mass. Hist. Soc. Coll. Ser. 4, Vol. III, 390-391.

And see Griswold, The Fifth Amendment Today (1955), 4; Morgan, The Privilege Against Self Incrimination, 34 Minn.L.Rev. 1, 22; Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763, 769.

The Court, by forgetting that history, robs the Fifth Amendment of one of the great purposes it was designed to serve. To repeat, the Fifth Amendment was written in part to prevent any Congress, any court, and any prosecutor from prying open the lips of an accused to make incriminating statements against his will. The Fifth Amendment protects the conscience and the dignity of the individual, as well as his safety and security, against the compulsion of government.

(3) This right of silence, this right of the accused to stand mute serves another high purpose. Mr. Justice Field, one of the four dissenters in Brown v. Walker, stated that it is the aim of the Fifth Amendment to protect the accused from all compulsory testimony 'which would expose him to infamy and disgrace,' as well as that which might lead to a criminal conviction. 161 U.S. at page 631, 16 S.Ct. at page 653, 40 L.Ed. 819. One of the most powerful opinions in the books maintaining that thesis is by Judge Peter S. Grosscup in United States v. James, 60 F. 257, 26 L.R.A. 418, involving the same Immunity Act as the one involved in Brown v. Walker. Judge Grosscup reviewed the history of the reign of intolerance that once ruled England, the contests between Church and State, and the cruelties of the old legal procedures. Judge Grosscup said concerning the aim of the Framers in drafting the Fifth Amendment (id., at 264):

'Did they originate such privilege simply to safeguard     themselves against the law-inflicted penalties and forfeitures? Did they take no thought of the pains of     practical outlawry? The stated penalties and forfeitures of     the law might be set aside; but was there no pain in disfavor      and odium among neighbors, in excommunication from church or      societies that might be governed by the prevailing views, in      the private liabilities that the law might authorize, or in      the unfathomable disgrace, not susceptible of formulation in      language, which a known violation of law brings upon the      offender? Then, too, if the immunity was only against the     law-inflicted pains and penalties, the government could probe      the secrets of every conversation, or society, by extending      compulsory pardon to one of its participants, and thus turn      him into an involuntary informer. Did the framers contemplate     that this privilege of silence was exchangeable always, at      the will of the government, for a remission of the      participant's own penalties, upon a condition of disclosure,      that would bring those to whom he had plighted his faith and      loyalty within the grasp of the prosecutor? I cannot think     so.'

Mr. Justice Field and Judge Grosscup were on strong historical ground. The Fifth Amendment was designed to protect the accused against infamy as well as against prosecution. A recent analysis by Professor Mitchell Franklin of Tulane illuminates the point. See The Encyclopediste Origin and Meaning of the Fifth Amendment, 15 Lawyers Guild Rev. 41. He shows how the Italian jurist, Beccaria, and his French and English followers, influenced American thought in the critical years following our Revolution. The history of infamy as a punishment was notorious. Luther had inveighed against excommunication. The Massachusetts Body of Liberties of 1641 had provided in Article 60: 'No church censure shall degrad or depose any man from any Civill dignitie, office, or Authoritie he shall have in the Commonwealth.' Loss of office, loss of dignity, loss of face were feudal forms of punishment. Infamy was historically considered to be punishment as effective as fine and imprisonment.

The Beccarian attitude toward infamy was a part of the background of the Fifth Amendment. The concept of infamy was explicitly written into it. We need not guess as to that. For the first Clause of the Fifth Amendment contains the concept in haec verba: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * *  * .' (Italics added.) And the third Clause, the one we are concerned with here-'No person *  *  * shall be compelled in any criminal case to be a witness against himself *  *  * '-also reflects the revulsion of society at infamy imposed by the State. Beccaria, whose works were well known here and who was particularly well known to Jefferson, was the main voice against the use of infamy as punishment. The curse of infamy, he showed, results from public opinion. Oppression occurs when infamy is imposed on the citizen by the State. The French jurist, Brissot de Warville, wrote in support of Beccaria's position, 'It is in the power of the mores rather than in the hands of the legislator that this terrible weapon of infamy rests, this type of civil excommunication, which deprives the victim of all consideration, which severs all the ties which bind him to his fellow citizens, which isolates him in the midst of society. The purer and more untouched the customs are, the greater the force of infamy.' I Theorie des Loix Criminelles (1781) 188. As de Pastoret said, 'Infamy, being a result of opinion, exists independently of the legislator; but he can employ it adroitly to make of it a salutary punishment.' Des Loix Penales (1970), Pt. 2, 121.

It was in this tradition that Lord Chief Justice Treby ruled in 1696 that ' * *  * no man is bound to answer any questions that will subject him to a penalty, or to infamy.' Trial of Freind, 13 How.St.Tr. 1, 17.

There is great infamy involved in the present case apart from the loss of rights of citizenship under federal law which I have already mentioned. The disclosure that a person is a Communist practically excommunicates him from society. School boards will not hire him. See Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. A lawyer risks exclusion from the bar (In re Anastaplo, 3 Ill.2d 471, 121 N.E.2d 826); a doctor, the revocation of his license to practice (cf. Barsky v. Board of Regents, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829). If an actor, he is on a black list. (See Horowitz, Loyalty Tests for Employment in the Motion Picture Industry, 6 Stan.L.Rev. 438.) And he will be able to find no employment in our society except at the lowest level, if at all. These facts make most persuasive the words of Judge Grosscup in United States v. James, supra, 60 F. 264-265, written in 1894:

'The battle for personal liberty seems to have been attained,     but, in the absence of the din and clash, we cannot      comprehend the meaning of all the safeguards employed. When     we see the shield held before the briber, the liquor seller,      the usury taker, the duelist, and the other violators of      accepted law, we are moved to break or cast is aside,      unmindful of the splendid purpose that first threw it      forward. But, whatever its disadvantages now, it is a fixed     privilege, until taken down by the same power that extended      it. It is not certain, either, that it may not yet serve some     useful purpose. The oppression of crowns and principalities     is unquestionably over, but the more frightful oppression of      selfish, ruthless, and merciless majorities may yet      constitute one of the chapters of future history. In my     opinion, the privilege of silence, against a criminal      accusation, guarantied by the fifth amendment, was meant to      extend to all the consequences of disclosure.'

It is no answer to say that a witness who exercises his Fifth Amendment right of silence and stands mute may bring himself into disrepute. If so, that is the price he pays for exercising the right of silence granted by the Fifth Amendment. The critical point is that the Constitution places the right of silence beyond the reach of government. The Fifth Amendment stands between the citizen and his government. When public opinion casts a person into the outer darkness, as happens today when a person is exposed as a Communist, the government brings infamy on the head of the witness when it compels disclosure. This is precisely what the Fifth Amendment prohibits.

Finally, it is said that we should not disturb Brown v. Walker because it is an old and established decision. But this Court has always been willing to re-examine and overrule constitutional precedents, even those old and established. In Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, this Court overruled Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, which had been a rule of decision for 95 years. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, partly overruled Paul v. State of Virginia, 8 Wall. 168, 19 L.Ed. 357, which had been decided 75 years previously. In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, the Court rejected some of the grounds of decision in Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242, which had been standing for 59 years. Brown v. Walker, decided by a bare majority of the Court and now 60 years old, has no greater claim to sanctity than the other venerable decisions which history showed had outlived their usefulness or were conceived in error. And a rejection of Brown v. Walker would certainly be far less disruptive of a system of law than was the overruling of Swift v. Tyson, which affected the trial of every diversity case in the federal courts.