dissenting:
I respectfully dissent from the en banc majority because its result threatens the *986foundation of the Fifth Amendment privilege against self-incrimination. The Commissioner’s authority to conduct a legitimate inquiry into Steven M. Asherman's continued suitability for Home Release Status is not disputed. Yet, contrary to the import of the majority opinion, the Fifth Amendment does not simply yield in the face of a relevant inquiry, but instead is a fundamental limitation on a governmental agency’s- ability to conduct such an inquiry. If the Fifth Amendment means anything at all, it demands in this case that Asherman not have his Home Release Status terminated solely on account of the invocation of his constitutional privilege.1 By sanctioning this result — on the subtle ground that his answers are relevant to an administrative inquiry — the majority greatly disserves judicial precedents construing the language of this Amendment broadly, and ignores the long history of cruel punishments inflicted on recalcitrant witnesses that led to its adoption in our Bill of Rights.
I
The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides in relevant part that “[n]o person ... shali be compelled in any criminal case to be a witness against himself.” The privilege “not only protects the individual against being’involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). If an individual asserts the privilege, “he ‘may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him’ in a subsequent criminal proceeding.” Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984) (quoting Maness v. Meyers, 419 U.S. 449, 473, 95 S.Ct. 584, 598, 42 L.Ed.2d 574 (1975) (White, J. concurring in result)) (emphasis in original).
Thus, simply put, the Fifth Amendment requires that unless an individual is given immunity at the time of his testimony, he may not be confronted with the dilemma of either answering questions that may tend to incriminate him or being penalized solely for the assertion of his constitutional privilege. Here, Asherman was not offered immunity. Hence, because, as the majority assumes, the answers to the only questions to which Asherman refused to respond— those relating to the crime for which his habeas corpus appeal was pending — created a risk that he would be “a witness against himself” in the new trial he might obtain, Asherman was entitled to invoke the Fifth Amendment privilege. And it is clear from the record that it was the invocation of this constitutional right that was the sole basis for which Asherman was reimprisoned. This is plain from the Commissioner’s letter to Asherman explaining the revocation of his Home Release Status. There he stated that Asherman’s “refusal to fully participate” in the psychiatric evaluation — that is, by invoking the Fifth Amendment with regard to questions relating to the crime — prevented the Commissioner from obtaining information relating to Asherman’s continued eligibility, and the absence of that information constituted “sufficient ground for determining that [he] no longer [was] a suitable person for home release status.” Consequently, Ash-erman was punished solely for the invocation of his constitutional right — a manifest violation of a citizen’s right to remain silent.
It must be emphasized, as it was in the original panel opinion, that the result compelled by the Fifth Amendment in this case in no way forecloses the Commissioner from conducting a legitimate evaluation of *987Asherman’s continued suitability for Home Release Status, and in fact reimprisoning him if an adverse determination is made on the basis of this evaluation. Petitioner may properly be required to answer any relevant inquiry not involving the risk of self-incrimination, and if he refuses to do so or if the answers to that inquiry cast doubt on his suitability, his status can be revoked on that basis. In fact, the Commissioner is entitled to draw an adverse inference from Asherman’s silence regarding the crime if after a grant of immunity he refuses to testify, Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976), or if the decision to reimprison him is not based solely on his silence. Id. at 317-18, 96 S.Ct. at 1557-58. What the Fifth Amendment forbids is exactly what occurred in this case — adverse action taken solely as a result of the invocation of the privilege against self-incrimination. See id. at 318, 96 S.Ct. at 1557-58.
H
Ironically, while the majority acknowledges that “Asherman could not have been ordered to answer questions concerning his crime,” they allege that “the Commissioner took no action to impair Asherman’s self-incrimination privilege,” because “[h]e sought no court order compelling answers, he did not require a waiver of immunity, and he did not insist that Asherman’s answers could be used against him in a criminal proceeding.” This analysis simply mis-characterizes Fifth Amendment jurisprudence. It cannot seriously be contended that the actions listed above are necessary for the finding of a Fifth Amendment violation. All that is required is that the governmental agency “sought to induce [an individual] to forego the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’ ” Murphy, 465 U.S. at 434, 104 S.Ct. at 1145-46 (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 2136, 53 L.Ed.2d 1 (1977)).
Moreover, the very cases relied upon by the majority do not support its novel proposition, but instead compel the opposite conclusion; that is, Asherman’s Home Release Status was revoked in violation of the Fifth Amendment. The Supreme Court, interpreting Uniformed Sanitation Men Ass’n Inc. v. Commissioner of Sanitation, 392 U.S. 280, 283-84, 88 S.Ct. 1917, 1919-20, 20 L.Ed.2d 1089 (1968) and Gardner v. Broderick, 392 U.S. 273, 278-279, 88 S.Ct. 1913, 1916-17, 20 L.Ed.2d 1082 (1968), explicitly stated that “[t]hese cases make clear that ‘a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.’ ” Murphy, 465 U.S. at 434, 104 S.Ct. at 1145-46 (quoting Lefkowitz v. Cunningham, 431 U.S. at 805, 97 S.Ct. at 2135-36). The holding of those cases is that the employees were presented with an impermissible “choice between surrendering their constitutional right or their jobs.” Uniformed Sanitation Men, 392 U.S. at 284, 88 S.Ct. at 1919-20.
Here, Asherman was likewise confronted with an impermissible choice — between surrendering his right to refuse to answer questions relating to the crime or losing his Home Release Status due to the absence of those answers. It seems to me uncontro-vertible that reimprisonment solely on the basis of a refusal to answer incriminating questions constitutes the'unlawful imposition of “substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” To. my mind, there, could be no clearer violation of the Self-Incrimination Clause.
In fact, in Murphy, the Supreme Court stated that “[o]ur decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” 465 U.S. at 438, 104 S.Ct. at 1148. It is difficult to fathom, then, how the majority can conclude that the revocation of Asherman’s Home Release Status — also resulting in reimpris-onment — on the basis of the. invocation of his constitutional privilege'is permissible. Just as is the case with revocation of parole, the revocation of Asherman’s Home *988Release Status is a “classic penalty situation,” id. at 435, 104 S.Ct. at 1146, foreclosed by the Fifth Amendment.
The majority makes a tortured attempt to disregard the result compelled by this Amendment, boldly asserting that the adverse action taken was “not for Asher-man's invocation of his constitutional rights, but for his failure to answer a relevant inquiry.” This is a distinction without a difference where, as here, the two are inextricably intertwined. Asherman’s failure to answer a relevant inquiry was solely and directly the result of his invocation of the right to remain silent. In other words, his assertion of right did not constitute a complete refusal to respond to relevant questions, as evidenced by. his appearance at the appointed time to undergo the evaluation; instead Asherman refused to respond only insofar as to do so could incriminate him.
Thus, the clear import of the majority decision can only be that when “answers might tend to incriminate but are also relevant to the proper exercise of state authority,” the relevant inquiry trumps the Fifth Amendment. This simply cannot be the correct way to construe the constitution. It is axiomatic that to constitute a proper exercise of state authority a governmental inquiry must not. violate the Constitution. The majority reverses this fundamental proposition, insisting that in this case Ash-erman’s Fifth Amendment privilege against self-incrimination must give way to á relevant governmental inquiry. The absurdity of this result is plain in its recitation — the Fifth Amendment dissolves in the face of a relevant governmental inquiry.
The majority states in support of its result that Uniformed Sanitation Men and Gardner “carefully preserved the authority of public agencies to discharge employees for refusing to answer relevant inquiries.” While this is true as far as it goes, the majority’s result, ignores the very holdings of these cases — that adverse action may be taken for failure to answer even relevant inquiries only when those inquiries “do not involve an attempt to coerce [individuals] to relinquish their constitutional rights,” i.e., answer questions that may tend to incriminate them. Uniformed Sanitation Men 392 U.S. at 285, 88 S.Ct. at 1920. Undeniably, in both cases the inquiries were relevant to the employment. Nonetheless, in each of the cases, the Supreme Court held that termination of employment based on the assertion of the Fifth Amendment privilege was unconstitutional. It is these holdings that constitute the legal authority on which this dissent is premised. The constitutional violations occurred because “[the employees] were not discharged merely for refusal to account for their conduct as employees of the city. They were dismissed for invoking and refusing to waive their constitutional right against self-incrimination.” Id. at 283, 88 S.Ct. at 1919 (emphasis added).
The distinction, it seems to me, is clear. Thus, for example, if the employees refused to answer questions about their conduct that did not involve the risk of self-incrimination, or if immunity had been supplied, any discharge would be based “merely” on refusal to account for conduct as employees, and would be permissible. But when refusal is based on a legitimate invocation of the right against self-incrimination, i.e., where the answer could subject them to criminal penalty, the Fifth Amendment is implicated and the discharge is not “merely” based on refusal to account for conduct as employees. Instead, dismissal is based on the invocation of a constitutional right, and this right predominates over the government’s interest in the inquiry.
In. Lefkowitz v. Turley the Supreme Court explained the distinction made in Uniformed Sanitation Men and Gardner between the ability of the state to take adverse action on the basis of a mere refusal to answer a relevant inquiry and the unconstitutionality of such action when Fifth Amendment rights come into play:
[T]he accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused_ [GJiven adequate immunity, the State may plainly insist that em*989ployees either answer questions under oath about the performance of their job or suffer the loss of employment.... [However] the State must recognize what our cases hold: that answers elicited upon the threat of loss of employment are compelled and inadmissible in evidence. Hence, if answers are to be required in such circumstances States must offer to the witness whatever immunity is required to supplant the privilege and may not insist that the employee ... waive such immunity.
414 U.S. at 84-85, 94 S.Ct. at 325-26 (emphasis added). The rule that a governmental inquiry, no matter how relevant, must not contravene the protection of the Fifth Amendment could not be stated more clearly. Consequently, without a grant of immunity, á governmental agency cannot take adverse action for an individual’s failure to answer even relevant questions that may tend to incriminate him. This notion is the gravamen of the Fifth Amendment privilege, and the majority opinion contravenes this fundamental constitutional principle.
Ill
When a court construes a statute, it examines legislative history. When it construes one of the Amendments contained in our Bill of Rights, it must turn to human history. This case may not be reviewed in proper context without considering in some detail the history leading to the adoption of the Fifth Amendment. That we enjoy an accusatorial rather inquisitorial system of criminal justice is not a fortuitous happenstance. History reveals there would be no Fifth Amendment if over a period of 800 years certain men and women had not suffered cruel punishments, which mobilized public opinion against oppressive official action aimed at extracting confessions from the mouth of the accused. The passage of time, the Supreme Court has noted in analyzing the Fifth Amendment, has “not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit.” Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511 (1956). Justice Holmes’ aphorism in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921), that “a page of history is worth a volume of logic” is, as Justice Frankfurter observed, peculiarly true with respect to the right to remain silent. Ullmann, 350 U.S. at 438, 76 S.Ct. at 506-07.
In the twelfth century Henry II of England (1154-1189) laid the early foundation for accusational prosecution by extending the then 400-year-old “inquiry of neighbors,” an ancestor of the jury system. At that same time Pope Innocent III (1198-1216) devised the inquisitional technique. The two systems differed in at least one fundamental respect: under the accusatory, the investigating officials developed the case from sources other than the accused; under the inquisitory, the same officials obtained their case from the mouth of the accused. Under an edict of the Fourth Lateran Council of 1215-16, an ecclesiastical official could make a person swear to tell the truth to, the full extent of his knowledge as to any matter about which he was questioned. See O. John Rogge, The First and the Fifth, 140-41 (1960) (Rogge). This is precisely the kind of testimony Ash-erman was directed by Meachum to give in the instant case.
Although the inquisitional method was used originally in England and on the Continent to pursue heretics, its use spread in the thirteenth century to the English Courts of Common Pleas and King’s Bench, id. at 147, and continued to grow until the time of Elizabeth I, when popular opposition to the oppressiveness of the inquisitional technique led to the Act of Supremacy (1558), which barred the Church from using this procedure. Id. at 151.
During the 1600s Edward Coke (1552-1634) became Chief Justice of the Court of Common Pleas by order of King James I (1566-1625), but later fell out of the king’s favor because of his insistence on the supremacy of the law over the royal prerogative. In Burrowes case, while sustaining a writ of prohibition against the High Com*990mission Court that wanted to use the oath ex officio (the inquisitorial oath) and releasing those held by that court on bail, Coke wrote: “the statute of I Eliz. is a penal law, and so they are not to examine one upon oath upon this law; thereby to make him to accuse himself ...” Id. at 163-70; 8 Wigmore on Evidence, § 2250 at 280-282 (McNaughton rev. 1961).
The growing use of the accusatorial system in England must be contrasted with the oppressive power of the inquisitional system on the Continent in the same century. , This is well-illustrated by the case of Galileo Galilei, then a 70-year citizen of Florence, Italy. He was taken before the Inquisition in Rome in 1633 to answer for the “Dialogue”, a book he had authored 17 years earlier. In this book, Galileo — perhaps the greatest living scientist and mathematician of his day — had stated that the doctrine proposed by Copernicus, which asserted thé immobility of the sun and the movement of the earth around the sun, was correct, even though according to the Church’s prelates the doctrine contradicted the literal meaning of certain Biblical passages. Galileo was given the choice of either renouncing his 50 years of life’s work by retracting what he had written or taking the Inquisitional Oath and thereby possibly subjecting himself to torture as a heretic. Under these cruel alternatives he confessed his “error,” for which he was sentenced to life in prison. See Zsolt de Harsanyi, Galileo and the Inquisition (1939).
In 1637 one John Lilburne, a Puritan, was taken before the Star Chamber on a charge of importing seditious books from Holland. For his refusal to answer certain questions he was fined, whipped and pilloried. While in the pillory Lilburne made a speech in which he said the inquisitional oath ex officio was “an oath against the law of the land_ [I]t is absolutely against the law of God, for that law requires no man to accuse himself.” Christ himself, said Lilburne, would not accuse himself, but in response to his accusers said: “Why ask me? Go to them that heard me.” Rogge at 171-73. See John 18:21-22 (Ronald Knox ed.). A thousand or more years before, as part of the ancient Jewish law, there is found in the Talmud the Hebrew equivalent of the Latin maxim nemo tenetur seipsum prodere, “no one is bound to betray himself.” L. Levy, Origins of the Fifth Amendment, Appendix at 434 (1968) (Levy).2
Three years later, in 1640, the Long Parliament convened and a petition for Lil-burne’s release was passed. The Star Chamber and the High Commission were abolished, and the oath ex officio as an ecclesiastical procedure was banned. 8 Wigmore on Evidence, § 2250 at 283-84. While most of the agitation had been directed at ecclesiastical courts, after the Lil-burne case and the reforms of the Long Parliament it began to be flatly asserted in common law trials that no person was bound to incriminate himself on any charge or in any court. Id. at 289. By 1660 the right against self-incrimination was broadly established and extended not only to the accused, but also to witnesses. Id. at 290.
In colonial America, this common law history took root. In Virginia in 1677 the House of Burgess declared that “noe law can compelí a man to sweare against him-selfe in any matter wherein he is lyable to corporall punishment.” Rogge at 180. But the road toward attaining a privilege against self-incrimination in the colonies was not without dramatic detours: The Salem Witch trials of 1692, which resulted in defendants being burned at the stake, are a prime example of torture and death being used against a recalcitrant witness who refuses to confess. See M. Berger, Taking the Fifth, 21-22 (1980) (Berger).
Virginia’s Declaration of Rights, a preface to the 1776 Virginia Constitution au*991thored by George Mason, included the right to silence. Levy at 405. Eight of the other Colonies followed the basic formulation in their own constitution requiring no man to be “compelled to give evidence against himself.” Id. at 409. Nonetheless, at the Constitutional Convention there were dark warnings that nothing in the initial draft prevented Congress from establishing “that diabolical institution, the Inquisition,” id. at 417, and perhaps repeating “the history of the inquisitions of the Star Chamber Court of England.” Id. at 419. Thus, in 1789 James Madison drafted the Fifth Amendment drawing on Mason’s Declaration of Rights. When the Bill of Rights was ratified in 1791 the enshrinement of the ancient maxim nemo tenetur into a constitutional right to remain silent was completed. See Berger at 23. That the Self-Incrimination Clause was included in the Fifth and not the Sixth Amendment— which Amendment, referring to the “accused,” protected that person alone — required that it be given a broader reading, one not restricted to a criminal defendant only, nor only to occasions when a defendant was on trial. See Levy at 427.
IV
When the Fifth Amendment was included in the Bill of Rights, the history just recited was in the forefront of the minds of its drafters. This history, to my mind, must neither be forgotten nor ignored. The majority opinion takes a step backward in the continuing struggle to maintain this precious right. It simply abrogates the protection of the Self-Incrimination Clause — as construed by Supreme Court decisions — by permitting the revocation of Asherman’s Home Release Status solely on the basis of his refusal to answer incriminating questions. Because the right to remain silent must be upheld, even in the face of administrative relevance, I dissent.3
. By letter dated February 11, 1992, the Attorney General of the State of Connecticut notified this Court "that Steven Asherman completed service of his sentence on February 11, 1992 and, as of this date, was discharged from the custody of the Connecticut Commissioner of Correction."
. The Puritan minister John Udall was tried for seditious libel at common law and asked to take an oath and answer the question whether he wrote the book Demonstration of Discipline which was published in 1589, and when he declined to answer the judges of the Court of High Commission, an ecclesiastical court, ac-gued his guilt to the jury. See Levy at 150-70. As one commentator has put it, following Udall’s conviction and sentence to hang, "Udall rotted away in prison and died_” See Oakes, The Proper Role of the Federal Courts in Enforcing the Bill of Rights, 54 N.Y.U.L.Rev. 911, 919-20 (1979).
. The majority has directed the remaining issues be returned to the original panel for it to consider. In my view, the en banc court has the legal authority to make that direction and has done so properly in this case.