By allowing ads to appear on this site, you support the local businesses who, in turn, support great journalism.
Americana Corner: The Bill of Rights: The Fifth Amendment
tom hand new

The Fifth Amendment: 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 offence 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.

The Fifth Amendment contains some of the most critical protections in the Constitution for those accused of crimes, safeguards that help keep a tyrannical government at bay. In total, it declares five separate but related rights to all citizens. The first right mentioned is that of a grand jury which is a group of citizens, typically 16-23 members, assembled by a prosecutor to determine if there is sufficient evidence to charge someone with a felony. It is called a grand jury because it has more jurors than a trial jury. Importantly, it is not a court proceeding.

Its history dates to the Magna Carta in 1215 and was part of the English common law present in colonial America. Its intention is to shield the people from frivolous government accusations. Interestingly, only two nations still conduct grand juries, the United States and Liberia.

The so-called “Double Jeopardy clause” protects citizens from being accused and going through the rigors of a trial twice for the same offense. Our Founders considered this principle a matter of fairness and compassion.

Although this doctrine is a bedrock principle of our legal system, there is one key exception. Namely, a person can be tried separately by the federal government and a state jurisdiction for the same offense.

The third section is privilege against self-incrimination, know to us today as “taking the Fifth”.

It is arguably the most fundamental right of those found in the Fifth Amendment. At its base is the natural right to self-preservation.

This concept was part of English common law and its roots trace to the practice of religious orders extorting confessions through torture. By the mid-1700’s, coercing answers from prisoners had largely died out in England and men like James Madison wanted to guarantee the same right to Americans.

In 1961, the Supreme Court in Miranda v. Arizona held that authorities must inform a suspect of this right against self-incrimination before proceeding with questioning.

Otherwise, any testimony would be inadmissible.

The fourth section is referred to as the “Due Process clause” and protects life, liberty, and property from impairment by the federal government. The Fourteenth Amendment grants the same protections from the states.

This language means that the government must follow proper procedures and not violate any Constitutional rights when seeking a conviction or that conviction will not stand.

Basically, it makes the government accountable in how they act towards the people.

The final right granted in the Fifth Amendment is the “Takings clause”. In essence, it requires the government to provide “just compensation” for private property taken from any citizen. We know this concept as “eminent domain”.

This right could have gone even further by forbidding the forceful taking of a person’s private property regardless of the compensation. However, our Founders knew that sometimes societal needs must outweigh individual rights.

WHY IT MATTERS So why should the protections and rights enshrined in the Fifth Amendment matter to us today? Our Founders lived in a time when forced confessions and judicial intimidation were a thing of the not-so-distant past.

They wanted to ensure Americans did not have to revisit those times.

Thanks to their foresight, we now enjoy a legal system in which we are innocent until proven guilty, and it is the responsibility of the government to prove the guilt. We should be grateful to our forefathers for creating that system.

As Supreme Court Justice William Douglas said, “The Fifth Amendment is an old friend a good friend. It is one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized”.

SUGGESTED READING An excellent reference book on our founding period is “The Founding Fathers, The Essential Guide to the Men Who Made America”. It is written by Encyclopedia Britannica and covers the key leaders and founding documents of our early nation.

PLACES TO VISIT Colonial Williamsburg in Williamsburg, VA is a real national treasure and well worth a visit. It recreates life in the 1770’s and includes a courthouse in which they conduct mock trials and a jail exhibit detailing prison conditions in colonial times.

Until next time, may your motto be “Ducit Amor Patriae”, Love of country leads me.

Tom Hand is a West Point alumnus and a Ford Plantation resident. You can reach him at tom@ americanacorner. com. And, read his blog at americanacorner. com.

Sign up for our E-Newsletters