“No person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use, without
just compensation.”
Yesterday we talked about the phase “the right of the
people,” and how the courts have begun to understand its meaning. The fifth amendment is much clearer in this
one sense. “No person” would seem to be
an all-encompassing statement, it doesn’t matter if you are a citizen, an alien
resident (legal or illegal), a mafia don, or bureaucrat under the scandal-free Obama
administration called to testify before Congress the protections of the fifth
amendment are there for you.
Anyone who has ever watched a movie about some criminal investigation
has probably heard the protections of this amendment invoked. “I plead the Fifth,” used to be a favorite
line for the screen writer. But what
exactly are they pleading to or for?
The Fifth Amendment can trace its heritage back to the
Magna Carta where the idea of Grand Juries and due process were first
introduced into English law. The
amendment provides five constitutionally guaranteed rights, Grand Juries for
capital crimes, the prohibition of double jeopardy, the prohibition of required
self-incrimination, a guarantee that a defendant shall have a fair trial, and
the protection from government seizure of land without the owner receiving fair
market value.[i]
The framers of the constitution sure packed a lot into this
amendment. Let’s briefly touch on each
protection.
The idea of a “Grand Jury” came into English law as a way
to protect the average knight, Duke, Baron or other land owner from the vengeance
of a displeased monarch. Found within
the common-laws a grand jury panel in the federal courts must be between 16 and
23 members. Their job is to deliberate
on the information available and determine if there is a reasonable belief the
accused did commit the crime. If so they
will “present” the court with a bill of indictment.
Double jeopardy is not just the round before final
jeopardy, it is an especially important provision of our legal system that
gives the government only one shot at proving their case against a defendant. There are actually three protections rolled
into this concept. The promise the defendant
will not be tried for the same crime after an acquittal or a conviction, and
the promise there won’t be multiple punishments for the conviction.
Self-incrimination, a defendant cannot be forced
to provide testimony, which may incriminate them with the crime being
investigated. If you paid attention to
the Congressional investigations into the IRS targeting scandal of the recent
administration you would have noticed several instances where this protection
was invoked, sometimes to the absurd.
The due process clause outlines the idea the government,
with all its resources will play fair with the defendant. The idea of fair play is a good one, too often
flawed in execution, but you have to admire the fact we can fall back on the
Constitution should the government not play fair.
Finally, the just compensation clause. The framers recognized there would be times
the government would just have to have a piece of property. Maybe it was for the view, maybe they wanted
a port for the Navy, a spit of land for a fort or a lighthouse, or just wanted
to have a big park, or whatever. They
set this up so the government had to pay the owner of that land a fair
compensation. Somehow this clause seemed
to be overlooked when dealing with native Americans, but that’s a whole
different story. The most troubling new
development in this area is the idea the government can take your property and
give it to someone else, as approved by the Supreme Court in Kelo v. City of New London, 2005
Well there we have the Fifth…
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