Felix Frankfurter

“ Actually the determination of civil law is quite clear: the innocent and guilty alike have a right of recourse to the Fifth Amendment. And if the innocent man has a clearly defined right to such recourse it is inconceivable that he could simultaneously have a duty not to have recourse, since rights and duties are correlative. Nor can it be urged that non-recourse is a duty of piety rather than justice. ”

“ To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.
It is in this spirit of strict, not lax, observance of the constitutional protection of the individual that we approach the claims made by petitioner in this case. The attack on the Immunity Act as violating the Fifth Amendment is not a new one. Sixty years ago this Court considered, in Brown v. Walker, 161 U.S. 591, 16 S.Ct. ”

“ We are not dealing here with one of the vague, undefinable, admonitory provisions of the Constitution whose scope is inevitably addressed to changing circumstances. The privilege against self-incrimination is a specific provision of which it is peculiarly true that 'a page of history is worth a volume of logic.' New York Trust Co. ”

“ If such an opinion were binding and all innocent men waived their rights to the protection of the Fifth Amendment, the purpose of the law would be defeated and the common welfare of the nation would suffer rather than prosper.' Congressional Investigations and Moral Theology, The Commonweal, Feb. 19, 1954, 497, 499.↑ 'If liberty is worth keeping and free representative government worth saving, we must stand for all American fundamentals-not some, but all. All are woven into the great fabric of our national well-being. ”

“ But it is every man's duty to give testimony before a duly constituted tribunal unless he invokes some valid legal exemption in withholding it. Although petitioner made the First Amendment argument when the United States Attorney applied, under the Immunity Act, for an order requiring him to testify, when he was cited for contempt he urged only 'all of the grounds we urged before Judge Weinfeld in opposition to the statute, in support of our contention that the statute was unconstitutional. ”

“ In that case, only the use of the compelled testimony, not prosecution itself, was prohibited. Here the State is forbidden to prosecute. But it cannot be contested that Congress has power to provide for national defense and the complementary power 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' U.S.Const., Art. I, § 8, cl. 18. The Immunity Act is concerned with the national security. ”

“ Petitioner cites the language of the statute, the legislative history, and miscellaneous other authorities in support of his construction. The Government contends that the court has no discretion to determine whether the public interest would best be served by exchanging immunity from prosecution for testimony, that its only function is to order a witness to testify if it determines that the case is within the framework of the statute. ”

“ Walker stated: '* * * it is entirely clear that he was not the chief, or even a substantial, offender against the law, and that his privilege was claimed for the purpose of shielding the railway or its officers from answering a charge of having violated its provisions. To say that, notwithstanding his immunity from punishment, he would incur personal odium and disgrace from answering these questions, seems too much like an abuse of language to be worthy of serious consideration.' 161 U.S. at pages 609-610, 16 S.Ct. ”

“ Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies. ”

“ For the history of the privilege establishes not only that it is not to be interpreted literally, [14] but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to the criminal acts * * *.' Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 534, 29 L.Ed. 746. We leave Boyd v. United States unqualified, as it was left unqualified in Brown v. Walker. Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases. We reaffirm Brown v. ”

“ But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena * * * or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.'↑ Shiras, J., joined by Gray and White, JJ., and Field, J., dissented.↑ It is true that the Court in Brown v. ”