Kimm v. Rosenberg, 363 U.S. 405 (1960)

Author: Justice Douglas

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Kimm v. Rosenberg, 363 U.S. 405 (1960)

MR. JUSTICE DOUGLAS, with whom The CHIEF JUSTICE and MR. JUSTICE BLACK concur, dissenting.

It has become much the fashion to impute wrongdoing to or do impose punishment on a person for invoking his constitutional rights.{1} Lloyd Barenblatt has served a jail sentence for invoking his First Amendment rights. See Barenblatt v. United States, 360 U.S. 109. As this is written, Dr. Willard Uphaus, as a consequence of our decision in Uphaus v. Wyman, 360 U.S. 72, is in jail in New Hampshire for invoking rights guaranteed to him by the First and Fourteenth Amendments. So is the mathematician, Horace Chandler Davis, who invoked the First Amendment against the House Un-American Activities Committee. Davis v. United States, 269 F.2d 357 (C.A. 6th Cir.). Today we allow invocation of the Fifth Amendment to serve, in effect, though not in terms, as proof that an alien lacks the "good moral character" which he must have under § 19(c) of the Immigration Act in order to become eligible for the dispensing powers entrusted to the Attorney General.

The import of what we do is underlined by the fact that there is not a shred of evidence of bad character in the record against this alien. The alien has fully satisfied the requirements of § 19(c), as shown by the record. He entered as a student in 1928, and pursued his studies until 1938. He planned to return to Korea, but the outbreak of hostilities between China and Japan in 1937 changed his mind. Since 1938, he has been continuously employed in gainful occupations. That is the sole basis of his deportability.{2} The record shows no criminal convictions, nothing that could bring stigma to the man. His employment since 1938 has been as manager of a produce company, as chemist, as foundry worker, and as a member of O.S.S. during the latter part of World War II. He also was self-employed in the printing business, publishing a paper "Korean Independence." No one came forward to testify that he was a Communist. There is not a word of evidence that he had been a member of the Communist Party at any time. The only thing that stands in his way of being eligible for suspension of deportation by the Attorney General is his invocation of the Fifth Amendment.

The statute says nothing about the need of an alien to prove he never was a Communist. If the question of Communist Party membership had never been asked and petitioner had never invoked the Fifth Amendment, can it be that he would still be ineligible for suspension? It is for me unthinkable. Presumption of innocence is too deeply ingrained in our system for me to believe that an alien would have the burden of establishing a negative. What the case comes down to is simply this: invocation of the Fifth Amendment creates suspicions and doubts that cloud the alien’s claim of good moral character.

Imputation of guilt for invoking the protection of the Fifth Amendment carries us back some centuries to the hated oath ex officio used both by the Star Chamber and the High Commission. Refusal to answer was contempt.{3} Thus was started in the English-speaking world the great rebellion against oaths that either violated the conscience of the witness or were used to obtain evidence against him. See Ullmann v. United States, 350 U.S. 422, 445-449 (dissenting opinion).

I had assumed that invocation of the privilege is a neutral act, as consistent with innocence as with guilt. We pointed out in Slochower v. Board of Education, 350 U.S. 551, 557-558: "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." We re-emphasized that view in Grunewald v. United States, 353 U.S. 391, 421:

Recent reexamination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men.

We went further in Konigsberg v. State Bar, 353 U.S. 252, 267, and in Schware v. Board of Bar Examiners, 353 U.S. 232, 246, and held that even past membership in the Communist Party was not, by itself, evidence that the person was of bad moral character.

We therefore today make a marked departure from precedent when we attach a penalty for reliance on the Fifth Amendment. The Court in terms does not, and cannot, rest its decision on the ground that, by invoking the Fifth Amendment, the petitioner gave evidence of bad moral character. Yet the effect of its decision is precisely the same. In so holding, we disregard history, and, in the manner of the despised oath ex officio, attribute wrongdoing to the refusal to answer. It seems to me indefensible for courts which act under the Constitution to draw an inference of bad moral character from the invocation of a privilege which was deemed so important to this free society that it was embedded in the Bill of Rights.

1. Meiklejohn, Political Freedom (1960) pp. 154-155, after referring to the efforts of legislative committees to compel Americans to give testimony "about their political beliefs and affiliations," goes on to say:

. . . in that field, the Fifth and the First Amendments are joined together, as their motives have been joined for centuries, in requiring of free citizens and of free institutions that they resist with all their might the irresponsible usurpations of a legislature which would attempt to tell men what they may believe and what they may not believe, with whom they may associate, and with whom they may not associate.

2. Petitioner was admitted as a student pursuant to § 4(e) of the Immigration Act of 1924. 43 Stat. 155, 8 U.S.C. (1946 ed.) § 204(e).

3. See Maguire, Attack of the Common Lawyers on the Oath Ex Officio As Administered in the Ecclesiatical Courts in England, Essays in History and Political Theory (1936), c. VII, p. 199 at 215, where the procedure of the High Commission is described:

Thus, the defendant swore to answer fully and truly all questions which might be put to him before he knew the charges in detail, and, in cases ex officio, without knowing the accuser. Either party could produce witnesses who gave their depositions on oath, but, in the most important cases ex officio mero, the whole trial was based on the answers of the defendant. As in the Star Chamber, the judges delivered their opinions seriatim, and the decree accorded with the decision of the majority.

Thus, the crux of the procedure was the oath ex officio. Until the defendant had been sworn, the articles for his examination could not be produced; until he had been examined, the case could not proceed to trial. Refusal or partial answers constituted contempt, followed by imprisonment; perjury was a cardinal sin.


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Chicago: Douglas, "Douglas, J., Dissenting," Kimm v. Rosenberg, 363 U.S. 405 (1960) in 363 U.S. 405 363 U.S. 409–363 U.S. 411. Original Sources, accessed September 25, 2022,

MLA: Douglas. "Douglas, J., Dissenting." Kimm v. Rosenberg, 363 U.S. 405 (1960), in 363 U.S. 405, pp. 363 U.S. 409–363 U.S. 411. Original Sources. 25 Sep. 2022.

Harvard: Douglas, 'Douglas, J., Dissenting' in Kimm v. Rosenberg, 363 U.S. 405 (1960). cited in 1960, 363 U.S. 405, pp.363 U.S. 409–363 U.S. 411. Original Sources, retrieved 25 September 2022, from