No person shall be held to answer for a capital or other infamous crime unless on presentation of indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property betaken for public use without just compensation.

--Fifth Amendment to the Constitution of the United States.

By Jnne first of this year, over 100 university teachers had declined to answer questions posed by three Congressional committees on grounds of the Fifth Amendment to the Constitution of the United States. Fifty-four had been dismissed or suspended from their jobs. Others were on probation or under official censure. All, according to polls of public opinion, had received the tacit condemnation of their fellow citizens.

Leading the investigations were the Senate Internal Security Subcommittee, headed until November by Senator Pat McCarran (D-Nev.) and by Sen. William E. Jenner (R-Ind.) afterwards; and the House Un-American Activities Committee, headed by Rep. Harold Velde (R-Ill.). Both group had full subpoena power, both had sent large research staffs in the field for months before they called witnesses. Both confronted witness with large stores of information on Communist and front activity during the last fifteen years. In almost every state in the union, state legislative committees had started or were preparing similar investigations.

Faced with this onslaught, both professors and governing boards of the nation's universities faced the problem of proper use of the Fifth Amendment, which had become the only legal defense against the Committee's questions.

Moral Issue

Many considered it a moral issue, and believed any testimony inferred their sanction to the committee's proceedings. Some felt that they had a perfect legal right to remain silent, for if they once spoke witnesses would be produced by the committee's to corner them on grounds of perjury. Even among the foremost legal minds in the nation there was no agreement. Morris L. Ernst, in an explanation of the problems confronting those who testified, wrote the following to the CRIMSON:

"Practically no one at any college will tell on a boy seen cheating in an examination. It is quite different if a student sees another student stealing money out of a desk drawer. There the reluctance to tell has substantially evaporated. Where did your sympathies lie in the West Point cheating exposure? My guess is it was with the boys who cheated rather than with the boys who told. In Hollywood's great contribution to culture--the gangster pictures--the audience without doubt is emotionally against the moll who squeals and is with the mob. In brief, the cop who spits never arrest a spitter. By and large, a human being only tells on those who violate the folkways of his own group.

"This is the essence of the dilemma under the Fifth Amendment. Outside of a few people, often represented by attorneys following the communist line, I suggest that practically all of the people who pleaded the Fifth Amendment were willing to tell everything they knew about the communist membership except that they had an understandable reluctance to tell on those people who had gotten out of the movement and were leading unmolested, decent, pro-democracy lives. We have taught our children not to be tattle-tales, but now we are putting on a public parade of witness to testify against their-upbringing. This parade may keep up for sixty years. 700,000 Americans, usually between the ages of 18 and 23, joined the communist movement in the United States and left the movement. At the rate of 1000 witnesses a year, the game can keep up until about 2500 AD. It is about time some professor did some writing on this confusion of our national ethic.

Evaporation into Limbo

"One other point: I was brought up under the belief that this precious constitutional protection applied so that no one need incriminate or degrade himself. The word "degrade" has evaporated into limbo, although it still survives in our sister culture in Great Britain. As the law now stands, despite some wonderful writing by judges in the United States Supreme Court over the decades, if any person is asked by a committee--"did you commit embezzlement or sodomy or any other anti-social act thirty years ago, there is no honest constitutional legal excuse for not making answer. The constitutional protection would not apply where the statute of limitation has run against the offense. The witness must be in danger of a prosecution not barred by the statute of limitations.

"With the tawdry practices of our fast evaporating daily press, a press monopolistic in many area, the injury done to a human life under such a jurisprudence can be as great, or greater, than the danger of a criminal prosecution. The District Attorney is not the only instrument for creating preventable hurt."

Travelling from city to city the investigators followed a hit-and-run tactic that made it difficult for universities to formulate any unified policy on what to do with professors who used the Fifth Amendment. In the initial confusion of November through January, some schools immediately suspended such teachers, others judged each case on its own merits. Not until March 24 were the thirty-four universities of the country who form the American Association of Universities able to agree on a single policy statement. This statement denied the privilege of tenure to Communist Party members and said the use of the Fifth Amendment by a teacher means "he must bear a heavy burden of proof as to his fitness to continue teaching." The AAU's legal interpretation of the Fifth Amendment followed pretty much the view first clarified by two Harvard Law School professors in a letter to the CRIMSON on January 13. Zechariah Chafee, Jr. and Arthur E. Sutherland said:

"...The underlying principle to remember in considering the subject is the duty of the citizen to cooperate in government. He has no option to say, "I do not approve of this Grand Jury or that Congressional Committee; I dislike its members and its objectives; therefore I will not tell it what I know." He is neither wise nor legally justified in attempting political protest by standing silent when obligated to speak. The citizen is ordinarily required, when summoned, to give testimony to a Court, legislative committee or other body vested with subpoena power and if he refuses to do so he is punishable. Subpoena power has proved necessary to the conduct of government: it is the correlative of the guarantee to an accused in the Sixth Amendment that he shall have compulsory process for obtaining witnesses in his favor.'

"To this general duty of the citizen the privilege against self-incrimination is an extraordinary exception. The federal constitution prohibits all federal officers from requiring anyone to give testimony tending to prove that he is guilty of a crime. Criticized adversely by some because it makes police work difficult, this immunity is justified by others because it keeps government officers active in investigating the facts of offense, rather than relying on 'grilling' suspects.