Origins of the Fifth Amendment: The Right Against Self-Incrimination
by Leonard W. Levy
Summary
Leonard W. Levy traces the right against self incrimination from its earliest roots in medieval and early English courts, where the ecclesiastical and prerogative courts of Star Chamber and High Commission could force a person to answer an oath before even knowing the charge against them, through the long struggle in England that gradually established a suspect's right to remain silent. Levy follows the principle across centuries of legal and political conflict, from Puritan defendants who refused to swear the notorious oath ex officio and became early figures in the fight for the right to silence, through the common law courts that slowly absorbed the principle as basic to a fair trial.
Levy then carries the story across the Atlantic, showing how American colonists inherited the English privilege and how the framers of the Constitution, drawing on generations of English legal memory rather than inventing something new, wrote it into the Fifth Amendment as one of the young republic's basic guarantees against government power. His research challenged historians who had assumed the privilege was a relatively recent or purely American development, arguing instead for a much longer, harder won English legal history behind five familiar words.
Levy writes as a constitutional historian building an argument almost entirely from primary legal sources, court records, statutes and case law spanning several centuries, and reading the book means following that argument through genuinely technical legal history. It suits a reader interested in how a constitutional right actually came into being, one contested court case and one stubborn defendant at a time, rather than a book about any single dramatic trial.
Historical Context & Significance
Origins of the Fifth Amendment won the 1969 Pulitzer Prize for History. No finalists were published that year; the Pulitzer board began naming them only in 1980.
The book established Levy, who earned his doctorate at Columbia under Henry Steele Commager and taught for decades as the Andrew W. Mellon All Claremont Professor of Humanities, as one of the country's leading constitutional historians, and it remains his best known work. It has stayed in print and been regularly reprinted since publication, still cited by legal historians and constitutional scholars for overturning the assumption that the privilege against self incrimination was a comparatively recent development rather than the product of centuries of English legal conflict that colonial Americans carried directly into their own Constitution.