Justice Thomas, with whom Justice Scalia joins, concurring.
Our decision today involves the application of the act-of-production doctrine, which provides that persons compelled to turn over incriminating papers or other physical evidence pursuant to a subpoena duces tecum or a summons may invoke the Fifth Amendment privilege against self-incrimination as a bar to production only where the act of producing the evidence would contain “testimonial” features. See ante, at 6—10. I join the opinion of the Court because it properly applies this doctrine, but I write separately to note that this doctrine may be inconsistent with the original meaning of the Fifth Amendment’s Self-Incrimination Clause. A substantial body of evidence suggests that the Fifth Amendment privilege protects against the compelled production not just of incriminating testimony, but of any incriminating evidence. In a future case, I would be willing to reconsider the scope and meaning of the Self-Incrimination Clause.
I
The Fifth Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” The key word at issue in this case is “witness.” The Court’s opinion, relying on prior cases, essentially defines “witness” as a person who provides testimony, and thus restricts the Fifth Amendment’s ban to only those communications “that are ‘testimonial’ in character.” Ante, at 6. None of this Court’s cases, however, has undertaken an analysis of the meaning of the term at the time of the founding. A review of that period reveals substantial support for the view that the term “witness” meant a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term. If this is so, a person who responds to a subpoena duces tecum would be just as much a “witness” as a person who responds to a subpoena ad testificandum.
Dictionaries published around the time of the founding included definitions of the term “witness” as a person who gives or furnishes evidence. Legal dictionaries of that period defined “witness” as someone who “gives evidence in a cause.” 2 G. Jacob, A New Law-Dictionary (8th ed. 1762); 2 T. Cunningham, New and Complete Law-Dictionary (2d ed. 1771); T. Potts, A Compendious Law Dictionary 612 (1803); 6 G. Jacob, The Law-Dictionary 450 (T. Tomlins 1st American ed. 1811). And a general dictionary published earlier in the century similarly defined “witness” as “a giver of evidence.” J. Kersey, A New English Dictionary (1702). The term “witness” apparently continued to have this meaning at least until the first edition of Noah Webster’s dictionary, which defined it as “[t]hat which furnishes evidence or proof.” An American Dictionary of the English Language (1828). See also J. Story, Commentaries on the Constitution of the United States §931 (1833) (using phrases “to give evidence” and “to furnish evidence” in explanation of the Self-Incrimination Clause). See generally Nagareda, Compulsion “to be a witness” and the Resurrection of Boyd, 74 N. Y.U. L. Rev. 1575, 1608—1609 (1999).
Such a meaning of “witness” is consistent with, and may help explain, the history and framing of the Fifth Amendment. The 18th century common-law privilege against self-incrimination protected against the compelled production of incriminating physical evidence such as papers and documents. See Morgan, The Privilege against Self-Incrimination, 34 Minn. L. Rev. 1, 34 (1949); Nagareda, supra, at 1618—1623. Several 18th century cases explicitly recognized such a self-incrimination privilege. See Roe v. Harvey, 4 Burr. 2484, 2489, 98 Eng. Rep. 302, 305 (K. B. 1769); King v. Purnell, 1 Black. 37, 42, 96 Eng. Rep. 20, 23 (K. B. 1748); King v. Cornelius, 2 Str. 1210, 1211, 93 Eng. Rep. 1133, 1134 (K. B. 1744); Queen v. Mead, 2 LD. Raym. 927, 92 Eng. Rep. 119 (K. B. 1703); King v. Worsenham, 1 LD. Raym. 705, 91 Eng. Rep. 1370 (K. B. 1701). And this Court has noted that, for generations before the framing, “one cardinal rule of the court of chancery [wa]s never to decree a discovery which might tend to convict the party of a crime.” Boyd v. United States, 116 U.S. 616, 631 (1886). See also Counselman v. Hitchcock, 142 U.S. 547, 563—564 (1892) (“It is an ancient principle of the law of evidence, that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him or subject him to fines, penalties or forfeitures”).