America's Unwritten Constitution: The Precedents and Principles We Live By (19 page)

In an age when no other interested witness was allowed to take the stand, it was doubtful that juries would properly credit a criminal defendant’s sworn testimony even if he was telling the truth. At the Founding, any proposed right of a criminal defendant to testify under oath at his own trial would have posed unique risks while offering uncertain benefits to its supposed beneficiaries.

Over the ensuing decades, background legal norms and cultural understandings evolved. Perjury came to be seen as more continuous with other human failings. On the civil side of the courthouse, new rules began to allow persons to take the stand even if they had something to gain or lose by their testimony. In 1864, Maine became the first state to allow all criminal defendants to testify under oath at trial. The federal government followed suit in 1878, and by the turn of the twentieth century only Georgia persisted in barring criminal defendants from the stand. Many jurisdictions also aimed to ease the burden on nontestifying defendants by instructing jurors not to draw adverse inferences against mute defendants. (An innocent defendant, after all, might wish to remain silent for any number of reasons—for example, because he was apt to stutter, sweat, or become confused upon close interrogation, and thus look guilty even though he was in fact truthfully attesting to his innocence.)
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And here is the punch line: In a trio of modern cases—
Ferguson v.
Georgia
in 1961,
Griffin v. California
four years later, and
Rock v. Arkansas
in 1987—the Supreme Court constitutionalized this new American consensus by proclaiming a right of every criminal defendant, state or federal, to take the stand if he wants to do so, and if not, a right to a jury instruction that no inference of guilt should be drawn from his silence.

AT THIS POINT IN OUR STORY,
we should pause to savor the significance of the reversal in the relevant rules over time: At the Founding, no criminal defendant could testify at his own trial, but today, every defendant has a clear constitutional right to do so. No constitutional clause has expressly dictated this about-face. Yet the reversal is plainly justified and notably uncontroversial. In the 1987
Rock
case, justices spanning the ideological and methodological spectrum unanimously agreed that a defendant ordinarily had a constitutional right to take the stand, even as the Court splintered over the precise contours of this right. (The Court majority held that a defendant had a right to testify even though he had previously undergone hypnosis to recover repressed memories. The dissenters thought that hypnotically refreshed testimony could be barred under a general evidentiary rule, applicable to other witnesses, that this sort of hypnosis rendered a witness’s testimony uniquely unreliable and uniquely impervious to cure via vigorous cross-examination.) No major political party or mainstream national politician has taken aim at the defendant’s constitutional right to testify or attacked “activist” judges for recognizing such a right—even though the right is not enumerated in the written Constitution, and even though Founding-era practice was precisely to the contrary.
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Three factors explain and justify the modern constitutional consensus. First, nothing in the written Constitution prohibits the recognition of an unenumerated right to testify in one’s own criminal case. The new right supplements the text but does not supplant it—and of course both the Ninth and Fourteenth Amendments invite supplementation of enumerated rights with unenumerated rights. The Fifth Amendment also comes into play here, with its sweeping, albeit nonspecific, promise of fair federal courtroom procedures—“due process of law,” a phrase repeated in the Fourteenth Amendment and thereby made applicable to state and local governments as well.

It is possible to imagine putative unenumerated rights that would contradict the text and thereby justifiably provoke strong resistance if they were to win official recognition. Consider, for instance, a criminal defendant who concedes that a fair federal trial can be held in the state where the crime occurred, but nevertheless claims an unenumerated right to relocate the trial across state lines—a right, in effect, to one peremptory challenge of the prosecutor’s initial choice of venue. Were judges to recognize this particular claim of right, the new right would negate the core meaning and clear command of the Judicial Article, which mandates that “the Trial of all Crimes… shall be held in the State where the said Crimes shall have been committed.”
¹³

By contrast, no textual violation occurred when courts recognized a criminal defendant’s right to testify. Of course, to say that an unwritten right to testify is logically compatible and textually consistent with a written right to stay mute is to say very little. An infinite number of putative constitutional rights, many quite outlandish, could pass a simple noncontradiction test. For instance: “Criminal defendants have an unenumerated constitutional right to government-provided soft drinks every Thursday.” Surely this alleged right and countless others do not deserve recognition as proper Ninth or Fourteenth Amendment entitlements or as entailments of due process of law.
¹⁴

A second key factor thus differentiates the criminal defendant’s right to testify from other claims that have, justifiably, not prevailed: Before this entitlement won official recognition as an unenumerated constitutional right, it had established itself in everyday American practice and in the lives of the American people. Only in the late twentieth century did the Court proclaim this right, decades after Americans began exercising it on a daily basis in virtually every courthouse in the country.

Indeed, the entitlement to testify has roots as old as the written Constitution itself, even though the specific right announced by the modern Court ran counter to Founding-era practice (as the justices in
Ferguson
candidly acknowledged). The sea-change that occurred in the late nineteenth century, when the old rules barring defendant testimony gave way to new rules welcoming defendants to tell their stories under oath, did not mark a revolution in first principles of law and justice. Rather, the new rules
merely involved the application of old principles to a new context. True, the new rules directly reversed the old rules in specific application. But the alternative—hidebound continuation of the old rules—would have raised serious problems of its own for interpreters seeking general legal coherence and fidelity to Founding principles. The Founders, after all, had disallowed criminal defendant testimony largely because this testimony was at the time deemed distinctly unreliable, as indeed was all testimony from interested parties at that time. But in a changed mid-nineteenth-century world in which other biased persons—civil plaintiffs and civil defendants, for example—were for the first time being allowed to testify, the premises of the old criminal-procedure rule no longer made sense. If a jury could be trusted to discount for the bias of interested witnesses in civil cases, the same held true in criminal cases. Given that the Fifth and Sixth Amendments had been drafted to give criminal defendants greater and more explicit rights than civil defendants, it was perverse to allow civil defendants to take the stand while denying this privilege to criminal defendants. Once civil defendants could testify to escape civil liability, the right of criminal defendants to testify to escape criminal conviction followed a fortiori.

Even if it were conceded that a criminal defendant’s right to testify was a wholly new invention of the late nineteenth century, with absolutely no connection to Founding-era principles or practices, this concession would hardly doom the right as a proper candidate for protection under the Ninth and Fourteenth Amendments. One of the core unenumerated rights of the people under the Ninth Amendment is the people’s right to discover and embrace new rights and to have these new rights respected by government, so long as the people themselves do indeed claim and celebrate these new rights in their words and/or actions.

This reading of the Ninth Amendment is consistent with but not compelled by the amendment’s text and original public meaning. In the Founding era, there were at least two plausible ways of construing the amendment’s clipped reference to unlisted rights “retained by the people.” On one reading, the word “retained” suggested a historical test: The people were entitled to various preexisting and customary rights already in place at the Founding, rights that they would continue to possess—that is, “retain.” On another reading, the word “retain” sounded more in logic and political theory than in history. Rights were logically superior to and/or
philosophically prior to government, and thus were conceptually withheld from government—“retained”—when government was established. Even if a given right only became analytically clear or won recognition in practice after the adoption of the Ninth Amendment, this right would still supersede governmental power and was thus fully covered by the amendment’s letter and spirit.
¹⁵

In choosing between these two plausible readings of the Ninth Amendment, faithful interpreters should embrace the second, which helps the written Constitution cohere with settled contemporary practice—with the actual world of American constitutional law that recognizes and reverences many utterly uncontroversial rights (such as the right of a criminal defendant to testify at his own trial), even though these rights are unenumerated and emerged long after the Founding. Those who respect the terse text and want it to succeed in its general project should hesitate to reject a perfectly plausible reading that ultimately strengthens the text by connecting it with the basic rights claimed and practiced by each generation of Americans.

But even if this reading of the Ninth were rejected, no matter. Here we come to the third and final factor that explains and justifies the modern recognition of unenumerated rights whose emergence postdates the Founding. Although the original public meaning of the Ninth Amendment is somewhat murky, the key clause of the Fourteenth Amendment is quite clear. The core “privileges” and “immunities” of “citizens” safeguarded by the amendment encompass not merely pre-1868 rights recognized in canonical sources such as the federal Bill of Rights and the Declaration of Independence, but also post-1868 rights that Congress may identify in civil rights laws enacted under section 5 of the amendment, which reads as follows: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this [amendment].”

This amendment was drafted by Congress for Congress. Its rights provisions were phrased in broad, open-ended language precisely to enable future Congresses to protect basic civil rights, both old and new. And Congress was not the only branch with authority to recognize new rights. Judges, too, were expected to play their part in the process to pay heed to emerging privileges and immunities embodied, among other places, in evolving American laws and practices.
¹⁶

The Fourteenth Amendment promised that basic rights, freedoms,
privileges, and immunities would constrain not just states but also the federal government. Although the amendment’s key clause, which appears in the second sentence of section 1, explicitly applied to states—“No State shall…”—readers must take special care to avoid the negative-implication trap lurking in this passage. By dint of section 1’s opening sentence, the amendment also obliged federal officialdom to respect fundamental civil rights. That opening sentence made clear that all American-born persons were “citizens of the United States.” For the Reconstruction Republicans who drafted and ratified this amendment, what it meant to be a citizen was,
ipso facto
, to have certain basic rights, freedoms, privileges, and immunities. While specific language—“No state shall…”—was needed to make clear that
state
abuses would thenceforth be prevented by the
federal
Constitution, basic rights vis-à-vis the federal government went without saying. Long before the Civil War,
McCulloch
had made clear that Congress had no power to do improper things. An amendment that explicitly says that states may not abuse citizens should thus never be twisted to imply that Congress may.
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A more faithful negative implication flows from the amendment’s above-quoted section 5: Congress enjoys broad power to “enforce” rights, old and new, but no power to abridge these rights. In general, the amendment was thus designed to favor whichever federal enforcement branch, Court or Congress, had the broader view of a given civil right, whether old or new.
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LET US NOW RETURN
to our Hollywood-style hypothetical, for the hypothetical contains a few additional elements that will help us further appreciate how America’s lived Constitution of actual practice has dramatically shaped the evolving law of constitutional criminal procedure.

The best tack for our hypothetical prosecutor to take would be to concede that unenumerated rights exist and to further concede that a criminal defendant ordinarily does have an unenumerated right to testify and to present reliable exculpatory evidence. But our prosecutor could argue that the specific facts of our hypothetical case justify a limited exception to these general rights, an exception that itself has roots in basic American ideals of fair play—that is, in America’s unwritten Constitution. With this
tack, our prosecutor would at least be playing the right game. But he would still deserve to lose.

Suppose the prosecutor pointed to simple symmetry as the relevant, albeit unwritten, constitutional principle. Ordinarily, a defendant should be allowed to present his own witnesses and evidence, because the prosecution is allowed to present its own witnesses and evidence; but, our prosecutor could argue, since the exclusionary rule generally prevents the government from introducing evidence that the police acquired illegally, a symmetric extension of the exclusionary rule should bar the defendant from introducing evidence that his team acquired illegally.