specially concurring:
Although I agree with the court’s conclusion as well as with much of what is said in the majority opinion, I do not agree with the majority’s statement that in interpreting the self-incrimination clause contained in article I, section 10, of our State Constitution, we are bound to automatically follow the decisions of the United States Supreme Court interpreting the comparable provision contained in the fifth amendment of the Federal Constitution. As justices of the highest court of the State of Illinois we take an oath of office to faithfully uphold the provisions of the State Constitution. We cannot delegate that duty to anyone — not to the legislature, nor the Governor, nor to any Federal court.
The majority assumes that a guarantee in the bill of rights of our State Constitution has the same content as the comparable guarantee in the Federal Constitution unless there is some indication to the contrary in the proceedings of the constitutional convention. This presumption is the reverse of the correct one and inverts the proper relationship between the State and Federal constitutions. The bill of rights in article I of the Illinois Constitution is the basic guarantee to our citizens of their civil liberties. Until the ratification of the fourteenth amendment in 1868, our citizens had very few Federal rights that were enforceable against their State government. The due process clause of that amendment only requires that the States recognize basic civil liberties that are “implicit in the concept of ordered liberty” (Palko v. Connecticut (1937), 302 U.S. 319, 325, 82 L. Ed. 288, 292, 58 S. Ct. 149, 152) and “which He at the base of aU our civil and poHtical institutions” (Hebert v. Louisiana (1926), 272 U.S. 312, 316, 71 L. Ed. 270, 273, 47 S. Ct. 103, 104). Although the United States Supreme Court has by now held that most of the guarantees in the Federal Bill of Rights apply to the States through the due process clause, in some instances considerations of federalism — which do not influence us — may counsel that court to delay before adopting a novel interpretation of the Constitution which will broadly expand the individual liberties guaranteed by the Federal government. (Cf. McCray v. New York (1983), 461 U.S. 961, 77 L. Ed. 2d 1322, 103 S. Ct. 2438 (opinion of Stevens, J., joined by Blackmun and PoweH, JJ., on denial of certiorari).) “It is one of the happy incidents of the federal system that a single courageous State may *** serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann (1932), 285 U.S. 262, 311, 76 L. Ed. 747, 771, 52 S. Ct. 371, 386-87 (Brandeis and Stone, JJ., dissenting).
There is no evidence in the record of proceedings of the Illinois constitutional convention to indicate that the framers of article I, section 10, intended to limit the content of the self-incriminatio'n clause to the precedents of the United States Supreme Court. In adopting nearly the same language as the broadly worded guarantee of article II, section 10, of the 1870 Constitution and in rejecting attempts to revise this language in order to codify certain precedents, the convention implicitly endorsed the open-ended balancing process traditionaUy used by courts to give content to the broad language of the constitutional guarantees contained in the biH of rights. In a closely related context, Delegate Elmer Gertz, chairman of the bill of rights committee of the sixth Illinois constitutional convention, expHcitly embraced this proposition:
“We don’t have closed minds here. We are simply trying to resolve these knotty problems; and in an area where, when you take the specific language of the Federal Bill of Rights or our bill of rights or any other bill of rights, the language seems to say something, and then the cases interpret sometimes beyond the language in interpreting the community mores and a growing sense of what constitutes justice — what constitutes due process of law— that’s the process that’s going on, and it isn’t going to stop with our proceedings. Unfortunately, there are sometimes half-way times when you recognize that something has to be done, and you are not quite sure what ought to be done. Whenever we weren’t quite sure what ought to be done, we refrained from doing anything.” (Emphasis added.) (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1379.)
Delegate Bernard Weisberg’s declaration that, under any of the proposed alternative drafts of article I, section 10, “the existing state of the law would remain unchanged” is consistent with the views expressed by Delegate Gertz. (3 Proceedings 1377.) His statement indicates that the framers did not intend to overrule any particular court decisions in this area, but, as I read his statement, at the same time it did not reject further development of the law by this court or by the Supreme Court of the United States.
In fulfilling our obligation to interpret and apply the Illinois Constitution we are obliged to broadly balance the basic principles contained in that document, and in doing so we are not limited by precedents of the United States Supreme Court. (See Cooper v. California (1967), 386 U.S. 58, 62, 17 L. Ed. 2d 730, 734, 87 S. Ct. 788, 791; see also State v. Neville (S.D. Mar. 14, 1984), No. 13260; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).) Of course, when we believe that a decision of that court “achieves a fair balance between [the relevant] competing objectives” (People v. Smith (1983), 95 Ill. 2d 412, 422), we may choose to follow it. However, when a majority of the United States Supreme Court has adopted an interpretation of the Bill of Rights that we believe is insufficiently ample to effectively implement those guarantees, we are not frozen by it in interpreting the comparable provisions of our State Constitution. See, e.g., People v. Exline (1983), 98 Ill. 2d 150, 157 (Goldenhersh and Simon, JJ., dissenting) (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, does not state the law under the Illinois Constitution); People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, does not state the law under the California Constitution); People v. Sporleder (Colo. 1983), 666 P.2d 135 (Smith v. Maryland (1979), 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577, does not state the law under the Colorado Constitution); People v. Langen (N.Y. 1983), 34 Crim. L. Rptr. 2142 (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, does not state the law under the New York Constitution).
Professor Paul Kauper, then of the University of Michigan, put it this way to the delegates to our constitutional convention:
“[A] state supreme court is free to give the freedoms recognized in the state constitution a reach that transcends interpretations given the fundamental rights by the United States Supreme Court. A state is free to develop its own higher standards.” P. Kauper, The State Constitution: Its Nature and Purpose, in Con-Con: Issues for the Illinois Constitutional Convention 23-24 (S. Gove & V. Ranney eds. 1970).
Because the language of the seh-incrimination clause in the Hlinois Constitution is almost identical to the comparable clause in the Federal Constitution, it does not follow it must have the same content. The similar language in the two constitutions indicates that the intention was to protect the same interests; consequently in many instances as in this case, but not in all cases, it can be expected that both constitutions will be interpreted in the same way. Nevertheless, what five United States Supreme Court justices decide is only a binding interpretation of the Federal Constitution. It is the nature of the Federal system that we, as the justices of the Illinois Supreme Court, are sovereign in our own sphere; in construing the State Constitution we must answer to our own consciences and rely upon our own wisdom and insights. “If we would guide by the light of reason, we must let our minds be bold.” New State Ice Co. v. Liebmann (1931), 285 U.S. 262, 311, 76 L. Ed. 747, 771, 52 S. Ct. 371, 387 (Brandéis and Stone, JJ., dissenting).