We the People, Our Bill of Rights, and Why We Should Care: Part 5

The fifth amendment still matters – here’s why.


Amendment V

What it says:

"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." (1).

What it means:

Broadly speaking, the Fifth Amendment protects an individual's right to be indicted by a group of average citizens (a grand jury) before going to trial (with the exception of a court martial which is military law, which I will not be discussing here) It also protects an individual's right to only be tried for a crime once, prevents an individual from having to provide incriminating evidence of themselves, and promises due process of law before the taking of life, liberty or property. The final clause protects individuals from the government taking of property for public use without getting fair payment in return.

Where it came from:

The Grand Jury: Grand Juries have a existed since early British common law. Designed to protect individuals from ardent prosecutors, the Framers decided to incorporate that protection into the Constitution. (2). (Note: grand juries are a gray area in the constitutional law. Yes, they are protected in the Bill of Rights, and most states have them, but states are not forced to have Grand Juries) (3).

Double Jeopardy: Believed to have been born in the 12th Century during a feud between Henry II and Archbishop Thomas Becket (4), double jeopardy exists to protect alleged criminals from the "tedium and trauma" of constant relitigation. (5).

Self-incrimination: Generally, the main inspirations for a protection against self-incrimination are thought to be clerical inquisitions and a British 15th-century court called the Star Chamber. Both the inquisitions and Star Chamber were notorious for forcing confessions from the accused, regardless of whether the accused was guilty or not. (6). Protection from self-incrimination protects an individual from incrimination through his own personal effects or testimony.

Due-process: The guarantee of Due Process in Anglo-American Law descended from chapter 39 of the Magna Carta which essentially promised that no man would be destroyed except by the lawful conviction of his peers. (7). During colonial rule in the United States, the British Crown decided to ignore legal precedent and implement the Intolerable Acts which afforded no due process and infringed on many colonial rights. As a result of legal precedent and British abuse, due process was included in the Fifth Amendment. (8).

Takings Clause: In England, the first legal protection of property came in section 39 of the Magna Carta which promised "No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." (9). Later, I the 17th Century, John Locke expounded on the right to property protection by concluding that, because private property exists independent of government, the state's role is limited to that of a protector. (10). As an extension of the English precedent and the strong support for property rights from Enlightenment philosophy, the Takings clause was included to protect natural rights from interference from the State. (11).

Why it's important today:

The importance of the Fifth Amendment is rather simple: 4/5 of the rights protected to protect the rights of a person accused of a crime. (These I will address first, and then move on to the importance of the Taking Clause.) The importance of rights afforded to the accused is always important. If we lost even one of these rights, the state would exponentially grow in power. If you are accused of a crime, these protections ensure that you will be given protection from an overzealous prosecutor who wants to throw you behind bars by charging you twice or coercing a confession. The Takings Clause is interesting because it does not seem to have anything to do with the processes of criminal law. Instead, it is important because it protects an individual's property rights. Recently, this right has been under attack. In a recent Supreme Court decision, the Court ruled that an action that is in some cases considered a "taking" ceases to be one merely because the owner of the affected lot also owned the property next to it. This ruling allows the state to avoid compensating property owners for the taking of their land. (13). This infringement needs to be taken seriously and support given to the dissenting voices in that ruling. The dissenters held that "basing the definition of property on a judgment call, too, allows the government's interests to warp the private rights that the Takings Clause is supposed to secure." (13).


(1) U.S. Constitution, amend. 5

(2) Robert Gilbert Johnston, The Grand Jury- Prosecutorial Abuse of the Indictment Process, 65 J. Crim. L. & Criminology 157 (1974).

(3) Hurtado v. California, 110 U.S. 516 (1884).

(4) Excerpt by Justice Roslyn Atkinson at Australian Law Student's Association Double Jeopardy Forum, 9 July 2003, Brisbane, http://archive.sclqld.org.au/judgepub/2003/atkin090703.pd.

(5) Dr. Manoj Kumar Sadual, Protection from 'Double Jeopardy': A Constitutional Imperative, 1 Int'l. J. of Human. & Soc. Sci. Stud. 37 (2015).

(6) Andersen v. Maryland, 427 U.S. 463 (1976).

(7) CRS Annotated Constitution, CRS/LII Annotated Constitution Fifth Amendment, https://www.law.cornell.edu/anncon/html/amdt5bfrag1_user.html#fnb3 (last visited Jul 25, 2017).

(8) Intolerable Acts, constitution, http://constitution.laws.com/intolerable-acts (last visited Jul 25, 2017).

(9) Edward J. Sullivan, A BRIEF HISTORY OF THE TAKINGS CLAUSE A Brief History of the Takings Clause, http://landuselaw.wustl.edu/articles/brief_hx_taking.htm (last visited Jul 27, 2017).

(10) Matthew T. Newton, "The Takings Clause: A Historical and Developmental Analysis" (1999). Honors Theses. Paper 117.

(11) id

(12) Murr v. Wisconsin, 582 U.S. (2017).

(13) id Roberts, C. J., dissenting (internal quotation marks omitted).

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