Self-Incrimination's Covert Federalism

Abstract

One might infer from such plaudits that the privilege enjoys even more judicial protection than newer rights of speech and religion. Indeed, the U.S. Supreme Court may unwittingly lend support to that view by means of the contrasting ways it analyzes First and Fifth Amendment rights. The Court analyzes First Amendment rights of speech and religion by weighing individual speech and religion interests against governmental interests, and by allowing governmental interests to override individual interests whenever governmental interests are compelling. 7 In contrast, when the Court analyzes Fifth Amendment claims of privilege, the Court does not engage in balancing, at least not overtly. Although the Court occasionally finds that interests being asserted are not ones that the privilege safeguards8 or that if they are, defendants waived them,9 once the Court