The Fifth Amendment. This is the often used amendment. How many of us have heard people say: “I plead the 5th.”?
In studying this amendment, I’ve come to realize that there are multiple “rights” all wrapped up in this one “right” or “amendment”. It’s as if the founding fathers wanted to fit in as many rights as they could into each amendment since they were only writing ten.
But, again, remember… the Bill of Rights is technically superfluous because if the federal government were following the actual Constitution, we wouldn’t need to worry about these “rights” being violated the federal government in the first place.
That being established, let’s start with the basic text of the amendment itself:
“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.”
I’m going to break this amendment up into five distinct categories or rights and discuss each of them briefly.
- The right to a grand jury before being convicted
- The disallowance of double jeopardy
- The right against forced self-incrimination
- The right to a fair trial
- The guarantee that government cannot seize private property without making a due compensation at the market value of the property.
One: The Right to a Grand Jury
Now, this particular aspect of the amendment is interesting to me because of its historical roots. The right to a “grand jury” started in England back in the 12th century. It was part of British common law. The British wanted a grand jury to decide the innocence or guilt of those on trial in order to protect British citizens from “over-zealous” prosecutions by the English monarchy. In other words, the American founders wanted a grand jury to protect American citizens from an over-zealous federal government.
Remember, when the amendments were originally written, they were just meant to curb federal power. So, the founders didn’t want the federal government to have the power to strip someone completely of their life, liberty and property, “in the heat of the moment”. Guaranteeing that all individuals prosecuted by government have the right to a grand jury slows the process and allows for rational thinking, evidence and objective decision making by more than just government officials.
Two: The Disallowance of Double Jeopardy
As a kid, one of my favorite movies was the movie Double Jeopardy. It’s an older movie starring Ashley Judd and Tommy Lee Jones. Judd’s character is charged and convicted with murdering her husband (who was not dead and a con-artist). The character goes to jail and eventually escapes to confront her husband. In the dramatic final scene (spoiler alert), Judd’s character, while pointing her gun at her con-artist husband, asks if he has ever heard of double jeopardy. She explains that a person cannot be tried two times for the same crime. In other words, since she’d already been found guilty of murdering him, she could actually kill him this time and she’d have no legal ramifications.
I remember being mystified by that concept. Why would anyone ever have to do go through the trial process for the same crime more than one? Why did the founders feel the need to include protection against double jeopardy in the Constitution? Doesn’t it seem almost too obvious? But, the founders felt that this legal barrier was indeed important, important enough to include it in the original ten amendments.
And, upon further research they included it with good reason. They were concerned about and wanted to avoid the mental, emotional and psychological damage that an individual could go through should the government choose to try someone over and over and over again for the same crime. In other words, the founders didn’t want the federal government, trying and then either acquitting or convicting someone and then deciding to do it all over again. Apparently, this was common practice in other countries.
Could you imagine the toll this kind of trial process would take on someone? What if an individual went through the whole trial, was found guilty, and then suddenly was brought back to the court house to redo the trial? And this happened over and over and over. Such an occurrence would be far worse if the individual was acquitted.
Frankly, I’d never considered that there would be the potential of this type of abuse, but apparently the concern was great enough that our founders wanted to make it very clear that the federal government could not re-try someone for the same crime once a verdict has been reached.
However, the more I’ve studied the more I’ve come to realize that this particular “right” is being violated rather frequently now that the federal government has overstepped its Constitutional realm of power when it comes to crime. Crime, for the most part, was left to be handled by the states; therefore, most criminal charges were to be tried by state courts. And yet, now that the federal government has inserted itself into the realm of crime, there are numerous cases where an individual can be tried and convicted of a crime twice, once at the state level and once at the federal. A major violation of this very amendment. If you want to learn more about this, check out my blog post here, where I detail what and how this overstepping of power has occurred.
Three: The Right Against Forced Self-Incrimination
So, this particular “right”, guaranteed by the Fifth Amendment, is probably the most popular. The basic and original meaning of this right is the following: no criminal defendant should be forced by the federal government to testify at their own trial, especially if they think such a testimony may cause self-incrimination. This is where the idea of “Pleading the Fifth” comes from (Constitution Center).
However, the Court (who is playing in murky water here, even causing Congress to question their power), re-interpreted the Constitution to mean this protection against forced self-incrimination extends beyond the court-room onto the streets. This means that law enforcement must inform an individual of their “rights” when arresting them. These are called the Miranda rights, named after Miranda from the Supreme Court case, Miranda vs. Arizona (1966), that extended the rights beyond the court room.
Of course, now that the Courts have re-interpreted the Constitution, they are now tasked with determining all the other details these “new” Miranda rights imply. If testimony is only acceptable when a person has “knowingly, intelligently, and voluntarily” waived their rights, who determines such a state of being? The courts have allowed spontaneous statements by defendants before having been read their rights, if the defendant was not prompted by law enforcement to make the statement, but again, who determines whether a statement like that is indeed spontaneous enough (Constitution Center)? This is why arbitrary power–power that is undefined and ultimately limitless–is incredibly dangerous.
In sum, the courts have greatly expanded their power here by re-interpreting the Constitution and opened the door to a slew of other “legal, Fifth Amendment” issues that law enforcement and the courts must deal with on a daily basis.
Four: The Right to a Fair Trial
This is perhaps one of the most important aspects of the Fifth Amendment. Since the government is created to protect us and our private property, it makes sense the that government cannot deprive us of such without a fair and speedy trial.
This quote from the Legal Information Institution explains: “The guarantee of due process for all persons requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive any person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding.”
In other words, the Constitution requires that government give everyone a trial before convicting them of their crimes and therefore stripping them of their Constitutional rights to life, liberty and property. Again, the Constitution stands in between government and the individual American citizen, slowing the government’s power over American citizens.
The government is encumbered by the Constitution. It forces the government to act contrary to its own greed for power, in order to comply with the Constitutional standards that protect an individuals’ life, liberty and property from government.
Think of it this way. Government loves power and there’s nothing more powerful than being able to strip citizens of all their rights and privileges as a human beings. And there’s no better way to justify doing so than by claiming an individual has forfeited those rights by committing a crime. Hence, government, upon a whim, if unconfined by the Constitution, could simply accuse anyone and then strip them of their rights, with no need to prove that the accused is indeed worthy of the accusation. This potential abuse of power is why our government and society are built upon that premise that its citizens are innocent until proven guilty. Otherwise, government would have a heyday stripping us of our rights and property and would justify doing so.
Five: The guarantee that government cannot seize private property without making a due compensation at the market value of the property.
Fascinating right? So, the government does have the right to seize private property (under specific circumstances), but only if the government pays market value for the property. This may, upon first reading, seem like an abomination to you. And, in some ways, it is. However, if you consider it a bit more, you’ll realize how truly revolutionary this amendment was at the time.
No government in world history has ever had to pay their own citizens for their land. Historically, there had never been the concept of private property, so all property was government’s property and individual citizens were merely allowed by government to use it. This means that, at any time, the government could seize what was already theirs.
This is not so in America. Property is the individual citizen’s and it is the government that must come and pay for that property, should they have need of it. So, while the government, at times, may seize property (to build interstates and the like), they must do so as a regular buying customer. They must pay the actual property owner the market value of their property.
This aspect of the amendment relegates government to a lower position. They are not in a position of forcing someone off their land or property, but they can pay for it like any other person would.
The downside to this, of course, is that the courts have taken and redefined this portion of the Fifth Amendment to give the federal and state governments much more power to force people off of their land against their will — although, and at least, with just compensation. Perhaps in time I’ll write an article on Eminent Domain for those who would like to learn more about the evolution of this power.
The Fifth Amendment is a fundamentally American amendment. We see it used in all the law enforcement shows and movies today, but very few of us have ever taken the time to sit down and actually study what it says and what it means for our liberty and for our country.
Now you know. If only we could extend the prudence, caution, and forethought that this amendment forces the federal government to use, to the rest of society. Society is so quick to judge, convict and execute before any trial, before any just chance for the individual to speak for him or herself.
We better watch out though, because if this way of thinking continues to grow in our social sphere, it won’t be long until it completely corrupts the political sphere as well.
The Liberty Belle
Please see law.cornell.edu for more details. Most of the information provided here comes from this link.
2 thoughts on “The Amendments Series: Jury, Double Jeopardy, and a Fair Trial”
How about civil asset forfeiture laws and the fifth amendment?
A good presentation as usual. As a retired policeman with a BA in political science I’d like to at least mention the misconstrued version of double jeopardy in the movies, DOUBLE JEOPARDY and HOW TO MURDER YOUR WIFE. The idea that once convicted or cleared of the murder of a specific person leaves no consequence of murdering them at a later date is false. Double Jeopardy means you can’t be tried a second time for a murder or other crime committed at a certain time and place. Kill them or commit the crime later time or another place and that’s a new crime, not the same crime. You are culpable.
Also I believe, contrary to what the courts allow, trying someone in a civil rights action, after trying them in criminal court, for the same actions/offenses, does violate double jeopardy. The government should be limited to one trial on any event. They should choose their court and proceed. Trying it in multiple courts and rules, to me, clearly violates the original intent of the double jeopardy clause of the 5th Amendment.