The Fifth Amendment was designed for several reasons; including everything from not having to testify against yourself, to due process, to equality, as a result the Fifth Amendment is a American Civil Liberties Union (ACLU) favorite. In fact, the Fifth Amendment was used very recently to over-turn the DOMA (Defense of Marriage Act) as it was deemed that marriage was between a man and woman was not “equality” under the law.
Let it begin:
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 lump a few of these context points together for the sake of reasoning.
Part one: No person shall be held to answer for a capital, or otherwise infamous crime
This Amendment was designed to protect the People from Government over-reach (as most Amendments were). The statement established the guidelines for capital or infamous crime, infamous crime by the way is generally described as a felony or something that usually is punishable by more than a year in prison. Sketchy for sure.
Part two: unless on a presentment or indictment of a Grand Jury
Here we get how the Government can get around the Fifth Amendment – the Founders were very good at detailing the loophole, unfortunately a Grand Jury can find a sandwich liable because in this event the prosecution can show evidence that violates multiple amendments, including search and seizure.
Part three: except in cases arising in the land or naval forces
Complicating things the Founders have pretty much written off the Military, they don’t mention “Air” so this should probably be amended itself.
Part four: or in the Militia
Once more, writing off the military aspect, so this clearly applies only to Civilians in the public
Part five: when in actual service in time of War or public danger
Ah the Founders threw in a clause, see the Military can’t just wave the Right, the Military member must have been engaged in conflict or engaged as a result of conflict. Confusing, but somewhat clarifying.
Part six: nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb
This is my favorite statement; this is what essentially stops the Government from doing what Italy just did with Amanda Knox. If the State charges you and can’t make its case, they can’t simply wait, gather more evidence and charge you again for the same crime. I find the words interesting as for the punishment “jeopardy of life or limb”, I think we all get the life part, essentially imprisonment, but the limb part, ouch.
Part seven: nor shall be compelled in any criminal case to be a witness against himself
“I plead the Fifth”, you hear that a lot in movies or shows with a court scene. What this means is that you cannot be forced to provide testimony against yourself that would incriminate yourself – can’t use your words against you, so to speak. This part has become very interesting in recent years when you discuss passwords and encryption, etc. The Courts have ruled that at no time can a person be forced to provide the State with their passwords, or even the fact that a password exists. The Government has tried repeatedly to get around this, but the mandate is clear. Providing your password would incriminate yourself, thus it is unconstitutional. The only way the State could force this issue is if they had enough corroborating evidence to say all of the following: “we know there is a password”, “we know the data you hid”, “we know you’re trying to hide it”.
Part eight: nor be deprived of life, liberty, or property, without due process of law;
The Founder started getting very fond of the semi-colon, setting context and almost ending the statement. Here we see that they’ve detailed what the State can’t take without first providing that the Person has had every opportunity given them under law.
Part nine: nor shall private property be taken for public use, without just compensation
And now the eminent domain portion of the Fifth Amendment oddly placed I think. This is a really interesting place to put a clause about seizure of property, almost seems like it was a hold over from the Fourth. What this establishes is that the Government can’t take a persons property simply because it wants it without giving adequate compensation (money). For the creation of this again the Founders looked at English law. During the Founders time the People had almost no rights to land, everything was that of the Crowns or whom the Crown selected. This precedent existed throughout history; see R v Earl of Northumberland was decided in 1568 where 12 judges in good ol’ England decided that every single mine was really the Queens. The Founders wanted to make sure that the Government couldn’t claim land without regard for the People or Person who owned it. In our current day we see this applied usually more so around the Government wanting to do something for the public good (like a road, park, utility lines, etc) – but watch this closely. The Government has picked up large portions of States land in the name of “National Parks”, do some research and you’ll see what I mean.
The goal of the Founders with the Fifth Amendment was to set rules for the Government when attempting to imprison or remove a persons personal effects. This Right is what ensures that most Americans are getting fair trials the majority of the time. While this doesn’t remove incident it does limit it. Now the problem with the American justice system is that case law allows judges to rule ad hoc on many, many things. This creates a definite injustice in sentencing guidelines; where you see a rapist get 5 years and a guy with 10lbs of pot go to prison for 10 years. All in all the Right is pretty clear and offers Joe Citizen a lot of protection but make sure you pay attention to Grand Juries and what they actually do and see, realize that an indictment by a Grand Jury is a cake walk and allows the State to trample the 4th, 5th and 6th Amendments in trying to reach an indictment. Watch closely for when the Government, through DHS or another body, attempt to remove the "Person" by associating an individual or group with something dangerous - think Terrorist. And also, remember that when you add the 4th and 5th Amendments together, you’re protected from the Government attempting to seize your property online (passwords, etc.). Keep thinking people. Keep thinking.
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