The Second Founding and Self-Incrimination

Abstract

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors. The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation’s Second Founding following the Civil War. Enslaved persons’ understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine first-person slave narratives in order to draw upon enslaved persons’ experiences for insights into self-incrimination doctrine. This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court’s self-incrimination jurisprudence. The Article next discusses the nation’s Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons’ views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons’ own first-person narratives. This evidence reveals that the Supreme Court’s cramped and formalistic approach to self-incrimination is inconsistent with the post-Civil War Constitution’s purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination