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Amendment V: Rights in the Face of Government Overreach

“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 consists of rights which are meant to protect citizens in the event that the government attempts to overreach its authority. John Jay, colonial statesman and the first Chief Justice of the U.S. Supreme Court, wrote, “It is the undoubted Right and unalienable Privilege of a Freeman not to be divested or interrupted in the innocent use of Life, Liberty, or Property but by Laws to which he has assented, either personally or by his representatives.”

The initial act of protection found in the Fifth Amendment provides a citizen accused of a crime the right to a grand jury. The grand jury, which is a group of people from the community, must determine whether the prosecutor has enough evidence to bring the accused to trial. It is likely that the Founders included this particular protection against overzealous prosecutors because of an event that occurred in New York during the 1730s. There British authorities failed three times to convince a grand jury to bring a fellow American colonist to trial for publishing material critical of a political official.

The Fifth Amendment also protects a criminal defendant from being tried twice for the same offense. Many of the Founders had studied the work of William Blackstone, the renowned scholar of English common law, who proclaimed that it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.”  While there are a handful of exceptions, a criminal defendant who is tried and found not guilty by a judge or jury may not be tried again for the same crime. This is true even if more incriminating evidence is later discovered.

Because many early Americans accused of a crime chose to represent themselves at trial, the Framers decided to provide criminal defendants with the right to not testify against themselves. Often referred to as “pleading the Fifth,” this right guarantees that no person will have to say anything that would criminalize oneself.

The Fifth Amendment also assures every American the right to “due process.” This means that the government may not deprive anyone of “Life, Liberty, and Property” without first providing that person with a fair hearing before an impartial judge. As U.S. Supreme Court Justice Felix Frankfurter once explained, “The history of liberty has largely been the history of the observance of procedural safeguards.”

The final protection afforded to an individual by the Fifth Amendment is that the government, under its eminent domain authority, cannot take a citizen’s private property unless it is for a valid public use. Even then, according to the Fifth Amendment, the government must pay the property owner “just compensation.” 


The Fifth Amendment Today


As it was in 1791, the Fifth Amendment continues to be very important today. Americans are protected against being tried repeatedly for the same crime. The government cannot bring you to trial again and again for the same offense, hoping to get the result they want. This means that if you are suspected of committing a crime, it’s up to the state to prove its case against you. You are innocent until proven guilty, and governmental authorities cannot deprive you of your life, your liberty or your property without following strict legal codes of conduct or “due process.”

The Fifth Amendment also protects private property against a government taking. In 2005 the U.S. Supreme Court ruled in Kelo v. City of New London that local governments could take private property from one person and transfer that property to a corporate entity with the expectation that the property would become more useful to the public. The ruling drew a sharp dissent from Justice Sandra Day O’Connor, who warned that it will allow governments to seize any property simply to allow developers to upgrade it. O’Connor wrote, “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall.”

Since that decision, several local governments have declared their intent to take peoples’ homes in order to convert them into office complexes, shopping centers and mega-stores. As local governments continue to search for ways to increase tax revenue, hard-working homeowners must be wary about their homes being taken away. Designating such possessions as necessary for the “public use” is often a sham, with the desire to increase tax revenues being the real motivation of local governments. Since the Kelo decision, some state legislatures have passed laws which ensure that such possession takings cannot occur. But unless the American public remains educated and focused on preserving this important constitutional right, it, along with their homes, could be taken by the government.

Aside from the “Takings Clause,” the other rights guaranteed under the Fifth Amendment also remain relevant. Those facing a criminal charge by the federal government are entitled to avail themselves of the grand jury process, to represent themselves in a criminal trial and not be tried for the same offense twice. Similarly, Americans are assured of fair and equal treatment by the government under the Fifth Amendment’s Due Process Clause.

While this maxim is generally held to be true, in the post-9/11 years, the president and Congress have attempted to deny due process to those it believes have some connection to the war on terror. The Presidential Military Order of November 13, 2001, gave the president the power to detain non-citizens suspected of connections to terrorists or terrorism as “enemy combatants.” They could be held indefinitely without charge, without a court hearing and without access to a lawyer. Not only have non-citizens been held in such a manner but so, too, were American citizens who were captured on American soil, rather than on a foreign battlefield. Beginning in 2002, the government has detained nearly 13,000 Arab, Muslim and South Asian men under cover of a special registration program spearheaded by Immigration Services. Detainees were held without bail for an average of three months and waited up to three weeks to contact an attorney. Such acts were in flagrant violation of the Due Process Clause, which allows for charges to be challenged in court, thus preventing someone being held in prison indefinitely. Despite successful legal challenges to these laws in the U.S. Supreme Court, Congress passed the Military Commissions Act in 2006, which eliminated habeas corpus (or the right to be heard in a court of law) in a way that allows non-citizen enemy combatants to be held indefinitely in a military prison, often without access to a civilian defense attorney. In 2009 the U.S. Supreme Court considered a challenge to the Military Commissions Act and found its denial of habeus corpus to non-citizen prisoners at Guantanamo Bay to be a violation of the Constitution.

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