I’ll never forget the first time I saw a lobster boiled alive. It was at a family gathering when I was very young, perhaps five or six years old. One of my aunts calmly picked up a happily wriggling lobster out of an ice chest and dropped it in a pot of boiling water. The lobster flailed a bit and then stopped moving.
That incident made a strong impression on me. I think of it whenever I read of a law, court decision, or administrative decision that, while not notable by itself, represents the end – the death – of something very important. But just like the lobster, most people don’t realize anything’s wrong. They continue “happily wriggling.”
Such was my thought process when I learned of a court decision last month that US persons have no right to withhold information about their foreign investments from the government, even if that information could be used to criminally prosecute them.
The Fifth Amendment appears to contain an outright prohibition of court decisions like this. The relevant section reads:
No person… shall be compelled in any criminal case to be a witness against himself…
It’s pretty simple. If the government wants to punish us – the essence of a “criminal case” – it can’t force us to incriminate ourselves.
Like so many other rights the Constitution enshrines, the right against self-incrimination originated in England. By the 1600s, English law granted its citizens the right not to incriminate themselves. The Founding Fathers of the US made sure this concept found its way into the Bill of Rights.
For nearly 200 years after the Bill of Rights came into effect, the courts interpreted the self-incrimination clause broadly. An 1886 Supreme Court decision held that the Fourth and Fifth Amendments create a "zone of privacy" that protects an individual and his personal records from compelled production. And the famous Miranda case of 1966 made it clear that arrested suspects had the right to refuse to answer questions from police.
Things started going downhill from there, but it happened too slowly for most people to notice.
In 1974 and again in 1976, the Supreme Court ruled that the Fifth Amendment doesn’t extend to personal records that may incriminate you, if a third party (such as a financial institution) holds them. Prosecutors can issue broad summonses compelling custodians of personal and financial records to retrieve data that matches whatever criteria the government stipulates. Such “John Doe summonses” are now routinely used in tax investigations.
So it came as no surprise that in 1984, the Supreme Court concluded that, “The Fifth Amendment provides absolutely no protection for the contents of private papers of any kind.”
The 2013 Salinas Supreme Court decision opened the door for further incursions, by confirming that a jury can draw a negative inference from someone who refuses to answer a question.
With this track record, I wasn’t surprised to learn that last month, the Third Circuit Court of Appeals ruled that citizens may not claim Fifth Amendment protection for their bank records. A couple named Chabot lost their argument that their offshore bank records could incriminate them in district court, and they lost again on appeal.
This is how we lose the rights won through blood, sweat, and tears more than 300 years ago. The events and decisions that matter are so seemingly innocuous and occur over such an extended time period that almost no one pays attention. Piece by piece. Year by year. Even century by century.
It’s such a slow process that it’s easy to miss. Not unlike a lobster obliviously on the way to his doom.
Are you like a lobster ready to be thrown into the pot? Or do you have a Plan B?
Mark Nestmann
Nestmann.com
