In the a whirlwind of broken analogies and broken precedent, one question seems to be largely missing: what grants the federal government the power to compel someone to assist in their own prosecution?
The 4th Amendment, via the warrant provision, grants the power to search places and seize persons or things. It does not grant the power to compel individuals to open their doors or put on their manacles.
The 5th states in part: "nor shall [any person] be compelled in any criminal case to be a witness against himself". Many act as if the existence of a specific prohibition is a grant of power in every other area.
Alexander Hamilton's objections in Federalist No. 84 seem quite prescient:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
The great unintended consequence of modern constitutional arguments has been to change the perception of the federal government from one defined by a closed set of powers, into one defined by a closed set of prohibitions.
The 4th Amendment, via the warrant provision, grants the power to search places and seize persons or things. It does not grant the power to compel individuals to open their doors or put on their manacles.
The 5th states in part: "nor shall [any person] be compelled in any criminal case to be a witness against himself". Many act as if the existence of a specific prohibition is a grant of power in every other area.
Alexander Hamilton's objections in Federalist No. 84 seem quite prescient:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
The great unintended consequence of modern constitutional arguments has been to change the perception of the federal government from one defined by a closed set of powers, into one defined by a closed set of prohibitions.