Like many areas of the law, the Fifth Amendment has defied theoretical explanation by scholars. We examine whether the fifth amendment cases can be explained with a relatively simple theory, and find that they can. The key to that theory is the recognition that, although never acknowledged by the Court, its cases make plain that "testimony" is the substantive content of cognition - the propositions with truth-value that people hold or generate (as distinct from the ability to hold or generate propositions with truth-value). This observation leads to a comprehensive positive theory of the Fifth Amendment right: the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action. As we demonstrate in this article, this theory explains all of the cases, a feat not accomplished under any other scholarly or judicial theory; it even explains the most obvious datum that might be advanced against it - the sixth birthday question in Muniz. There remain two sources of ambiguity in Fifth Amendment adjudications. First, compulsion and incrimination are both continuous variables - questions of degree. The Court has recognized this and set about defining the amount of compulsion and incrimination necessary to a Fifth Amendment violation. The result is a common law of both topics rather than a precise metric of either. These two variables are independent and do not interact, which reduces the complexity of decision making. Compulsion, in other words, is in no way determined by the extent to which the results are incriminating. Compulsion is determined on its own, as is the sufficiency of incrimination. The second source of ambiguity arises from the Court not explicitly equating "testimony" with cognition, though that is precisely what has controlled its decisions. Given that the Court's opinions have not focused on substantive cognition as the third element of a Fifth Amendment violation, it is not surprising that the Court has not clarified whether cognition, too, is a continuous or discontinuous variable. This is where the future lies. The Court will have to clarify two matters: first, whether the extent of cognition matters, and second, the derivative consequences of cognition. In addition, the Court will have to determine whether these two issues are, like compulsion and incrimination, independent. Does the extensiveness of the compelled cognition determine how far its causal effect will be traced? We then note that this "theory" does not look like a standard academic theory with its attendant emphasis on normative analysis. We examine whether the normal meaning of "normative justification" is a very useful one in any field of law with the range of the fifth amendment, point out that it is quite similar to the fourth amendment in this regard, and that scholarly efforts to discover its "true" justification may be doomed to failure. This does not mean that fields of law are unjustified, but perhaps that the justification must come in other terms. The terms plainly applicable to these two areas are the traditional ones of the rule of law. The Court has strived to make sense of ambiguous directives through creating and sustaining relatively clear legal categories and by responding to new situations through analogies to prior cases. We think it plausible that, however dull this may appear to the legal theorist, the legal system may be better off as a result. The article thus adds to the growing literature concerning the nature of legal theorizing by demonstrating yet another area where legal theorizing in its modern conventional sense (involving the search for the moral or philosophical theory that justifies an area of law) has been completely ineffectual, whereas explanations that are informed by the presently neglected values of legality (clarity, precision, consistency, fidelity to authority) have considerable promise.

Date of this Version

December 2003