BLACK, J., dissenting-Appendix.

332 U.S.

rights common law rights of the man, they make them privileges and immunities of the man as citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words, while the ten Amendments, as limitations on power, only apply to the Federal government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten Amendments had limited Federal power.

the rights declared in the first ten Amendments are to be regarded as privileges and immunities of citizens of the United States, which, as I insist, are protected as such by the Fourteenth Amendment." Id. at 151, 152.

The constitutional issues raised by this argument were not reached by the Court which disposed of the case on jurisdictional grounds.

However, Mr. Justice Field, in his dissenting opinion in O'Neil v. Vermont, 144 U. S. 323, 337, 361, stated that "after much reflection" he had become persuaded that the definition of privileges and immunities given by Mr. Tucker in Spies v. Illinois, supra, "is correct." And Mr. Justice Field went on to say that

"While, therefore, the ten Amendments, as limitations on power, and, so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the Federal government and not to the States, yet, so far as they declare or recognize the rights of persons, they are rights belonging to them as citizens of the United States under the Constitution; and the Fourteenth Amendment, as

46

MURPHY, J., dissenting.

to all such rights, places a limit upon state power by ordaining that no State shall make or enforce any law which shall abridge them. If I am right in this view, then every citizen of the United States is protected from punishments which are cruel and unusual. It is an immunity which belongs to him, against both state and Federal action. The State cannot apply to him, any more than the United States, the torture, the rack or thumbscrew, or any cruel and unusual punishment, or any more than it can deny to him security in his house, papers and effects against unreasonable searches and seizures, or compel him to be a witness against himself in a criminal prosecution. These rights, as those of citizens of the United States, find their recognition and guaranty against Federal action in the Constitution of the United States, and against state action in the Fourteenth Amendment. The inhibition by that Amendment is not the less valuable and effective because of the prior and existing inhibition against such action in the constitutions of the several States. "O'Neil v. Vermont, supra, at 363.

Mr. Justice Harlan, and apparently Mr. Justice Brewer, concurred in this phase of Mr. Justice Field's dissent. Id. at 366, 370, 371.

For further exposition of these views see also the vigorous dissenting opinions of Mr. Justice Harlan in Hurtado v. California, 110 U. S. 516, 538, and Maxwell v. Dow, 176 U. S. 581, 605, as well as his dissenting opinion in Twining v. New Jersey, 211 U. S. 78, 114.

MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE concurs, dissenting.

While in substantial agreement with the views of MR. JUSTICE BLACK, I have one reservation and one addition to make.

MURPHY, J., dissenting.

332 U.S.

I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.

That point, however, need not be pursued here inasmuch as the Fifth Amendment is explicit in its provision that no person shall be compelled in any criminal case to be a witness against himself. That provision, as MR. JUSTICE BLACK demonstrates, is a constituent part of the Fourteenth Amendment.

Moreover, it is my belief that this guarantee against self-incrimination has been violated in this case. Under California law, the judge or prosecutor may comment on the failure of the defendant in a criminal trial to explain or deny any evidence or facts introduced against him. As interpreted and applied in this case, such a provision compels a defendant to be a witness against himself in one of two ways:

1. If he does not take the stand, his silence is used as the basis for drawing unfavorable inferences against him as to matters which he might reasonably be expected to explain. Thus he is compelled, through his silence, to testify against himself. And silence can be as effective in this situation as oral statements.

2. If he does take the stand, thereby opening himself to cross-examination, so as to overcome the effects of the provision in question, he is necessarily compelled to testify against himself. In that case, his testimony on crossexamination is the result of the coercive pressure of the provision rather than his own volition.

46

MURPHY, J., dissenting.

Much can be said pro and con as to the desirability of allowing comment on the failure of the accused to testify. But policy arguments are to no avail in the face of a clear constitutional command. This guarantee of freedom from self-incrimination is grounded on a deep respect for those who might prefer to remain silent before their accusers. To borrow language from Wilson v. United States, 149 U. S. 60, 66: "It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand."

We are obliged to give effect to the principle of freedom from self-incrimination. That principle is as applicable where the compelled testimony is in the form of silence as where it is composed of oral statements. Accordingly, I would reverse the judgment below.

BARTELS ET AL., DOING BUSINESS AS CRYSTAL BALLROOM, v. BIRMINGHAM, COLLECTOR OF INTERNAL REVENUE, ET AL.

NO. 731. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.'

Argued April 3, 1947. Decided June 23, 1947.

1. Under the circumstances detailed in the opinion, the members of "name bands" which play short-term engagements at public dance halls are, for purposes of the taxes imposed by the Social Security Act, employees of the band leaders and not of the dance hall operators-notwithstanding contractual provisions designating the dance hall operators as their employers. Pp. 127-132.

2. An interpretive ruling on Treasury Regulations by the Commissioner of Internal Revenue, whereby the burden of the social security tax could be shifted by contractual arrangements from the band leaders to the dance hall operators, was in excess of the statutory power of the Commissioner and invalid. Pp. 130-132. 157 F.2d 295, reversed.

Petitioners brought suits against the Collector of Internal Revenue for refunds of social security taxes. In one of the suits several band leaders were permitted to intervene as defendants. Judgments for the petitioners in the District Court were reversed by the Circuit Court of Appeals. 157 F. 2d 295. This Court granted certiorari. 329 U. S. 711. Reversed, p. 132.

Clyde B. Charlton and Thomas B. Roberts argued the cause for petitioners. With them on the brief were George E. Brammer and Joseph I. Brody.

Robert L. Stern argued the cause for Birmingham, Collector of Internal Revenue, respondent. With him on the

*Together with No. 732, Geer et al., doing business as Larry Geer Ballrooms, v. Birmingham, Collector of Internal Revenue, also on certiorari to the same Court.