Federalism v. Individual Rights: The Legal Squeeze on Self-Incrimination

This study deals with one reputed value of federalism, its service in the cause of freedom or liberty (both terms are used interchangeably here to mean an immunity from arbitrary governmental action). In particular, I shall examine one aspect of that sort of freedom in our federal system, namely, the right against self-incrimination. The general case for the peculiar virtue of our constitutional system as a means of assuring such a right was summarized by Madison: In the compound republic of America the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself. Passing over argument about the contribution of the separation of powers and judicial review, our attention will center on the complexities introduced by the federal division of powers. William Anderson posed the broad question some years ago: “Does federalism imply not only a division of powers between national and state government, but also a subtraction of powers from both in favor of the individual? Will there be less government in a federal than in a unitary state, or possibly even more?” And we might add—what his formulation leaves partly open—if more government, then necessarily less freedom? More explicitly, Franz Neumann has suggested recently that “whether the federal state does increase freedom cannot be abstractly determined. We have some evidence that the federal state as such (that is regardless of the form of government) has not fulfilled this role.”