Judges: Falling Out With the Fifth

Back in the era of Senator Joe McCarthy, says Judge Henry Friendly of the U.S. Court of Appeals, the Fifth Amendment served as a shield for people whose only crime was leftist political associations. Indeed, says Friendly, the amendment's main purpose was to give the protective privilege of silence to those persecuted for heresy, nonconformity and political crimes. "This is the privilege we love," says Friendly.

Love is now dying between the judge and the amendment. During the 1960s, he argues, it has served to protect murderers, rapists and bagmen. It has worked to prevent police from getting the information...