There has recently been some significant discussion of Justice Thomas’s concurring opinion (joined by Justice Scalia) in Salinas. See here and here and here. In his Salinas concurrence, Justice Thomas argued that the doctrine announced in Griffin v. California – that the privilege against self incrimination barred a prosecutor or judge from commenting on the fact that the criminal defendant did not testify at trial– was not in accord with the Constitution’s original meaning. Thomas also argued that the doctrine should not be extended in Salinas to comments on the criminal defendant’s precustodial silence.
What is interesting about this issue is that when one looks at the originalist history, one finds entirely different practices than those of the modern courts. It is often said that the purpose of the privilege against self incrimination was to prevent the government from forcing individuals to testify against themselves. And so it probably was. Some courts such as the Star Chamber would require that the defendant provide such testimony.