Rubashov's Question: Self-Incrimination and the Problem of Coerced Preferences

Abstract

Rubashov was silent. Quite a long time passed. Ivanov's head bent even closer over the writing desk. "I don't understand you," he said. "Half an hour ago you made me a speech full of the most impassioned attacks against our policy, any fraction of which would have been enough to finish you off. And now you deny such a simple logical deduction as that you belonged to an oppositional group, for which, in any case, we hold all the proofs." "Really?" said Rubashov. "If you have all the proofs, why do you need my confession?"' The fifth amendment's self-incrimination clause is a puzzle. Its defenders hail it as "one of the great landmarks in man's struggle to make himself civilized." This is so because "[t]he essential and inherent cruelty of compelling a man to expose his own guilt is obvious to every one, and needs no illustration. It is plain to every person who gives the subject a moment's thought." Yet apparently civilized lawyers who seem to have thought about the matter for more than a moment-Jeremy Bentham, Benjamin Cardozo, and Henry Friendly come to mind-have concluded that the privilege is an unnecessary and anachronistic impediment to the efficient discovery of truth in criminal prosecutions. These conflicting intuitions about the privilege present a familiar dilemma for constitutional law. Liberal theories of constitutionalism rest on our ability to articulate noncontroversial "neutral" standards of substantive political morality-standards abstracted from day-to-day political controversy-against which political outcomes can be measured. The existence of such standards is what justifies constitutionalism-what makes it an exercise in law, rather than power. But the effort to find and defend yardsticks has proved strikingly unsuccessful. Intuitions specific enough to resolve controversial questions of political morality are, themselves, generally controversial enough to make the claim of neutrality implausible. Conversely, intuitions that are truly abstracted from political controversy are, for that reason, likely to be too vague to resolve such controversy.