Albert Einstein on the McCarthy hearings and the Fifth Amendment, 1953
A Spotlight on a Primary Source by Albert Einstein
During the "McCarthy hearings" of the 1950s, the government investigated American society and industry in an attempt to root out communist sympathizers. Among those investigated were scientists and scholars, who were called upon to appear before the committee to answer questions concerning their political affiliations. Some refused to testify, citing the Fifth Amendment. Rose Russell, a member of the Teachers Union of the City of New York, considered invoking of the Fifth Amendment in a letter to famous physicist and avowed socialist Albert Einstein in 1953.
Einstein advised Russell, as he did others, to refuse to testify but not on the grounds of the Fifth Amendment. In this May 28, 1953, letter Einstein wrote that although invoking the Fifth Amendment was not "unjustified," the McCarthy hearings were not the circumstance it was meant for. "The 5th Amendment was adopted," he wrote, "in order to make it impossible for the judicial authorities to bring the accused to confess through means of extortion." He continued, "In the present cases, it is not a matter of violent extortion of the accused," but rather a "matter of using people as tools for the prosecution of others that one wants to label as ‘unorthodox.’"
Invoking the Fifth Amendment was problematic, Einstein wrote, because "the individual is offered no legal middle ground for him to defend his actual rights." In closing, he pointed to a more "revolutionary" tactic—"non-cooperation, like Gandhi used with great success against the legal powers of the British Authorities."
Later that year, Einstein also counselled fellow physicist Al Shadowitz to refuse to provide testimony at the McCarthy hearings—not by invoking the Fifth Amendment, but by asserting that the questioning was in violation of the First Amendment.
A full translation is available.
Dear Rose Russell,
I feel obliged to answer your kind letter from May 21st. My intention was not to disparage the 5th Amendment as being unjustified.
The 5th Amendment was adopted in order to make it impossible for the judicial authorities to bring the accused to confess through means of extortion.
In the present cases, it is not a matter of violent extortion of the accused but a matter of using people as tools for the prosecution of others that one wants to label as "unorthodox" and pursue through an economic campaign of destruction. It is a misuse of Parliament’s immunity, carrying out practices that should fall into the machinery of the judicial fury (police). This procedure absolutely contradicts the nature of the arrest, if not also it’s exterior form.
The individual is offered no legal middle ground for him to defend his actual rights. That is why I argued that there is no way other than revolutionary non-cooperation, like Gandhi used with great success against the legal powers of the British Authorities.