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 is one of the most recognized of our Bill of Rights. Unfortunately most people view it as the last refuge of criminals, desperate to avoid being held accountable for their heinous crimes. The familiar refrain "I take the Fifth" is treated by most with disdain, rather than the reverence with which our founding fathers held the Fifth Amendment's many precious protections. The problem lies, at least in part, with the ignorance of most Americans as to the meaning of the Fifth Amendment. Therefore in this column we briefly explore the Amendment's diverse protections so that the reader can judge for him or herself.
The Fifth Amendment begins "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. . ." This series of clauses clearly manifests an intent by our forefathers to protect the individual from being bound or taken into custody, against one's will, to reply to an accusation that said person was involved in a capital (i.e. a crime punishable by death at common law) or otherwise infamous crime1 unless a certain condition is first met. That condition is that a Grand Jury make a presentment or indictment against a person before said person can be held to answer.
The Grand Jury is that body of citizens, the number of whom varies from state to state,2 "that investigates accusations against persons charged with crime and indicts them for trial if there is sufficient evidence."3 At common law, an indictment occurs when at least twelve members of a Grand Jury, lawfully convoked and acting upon oath or affirmation, finds the Bill of Indictment presented to it by the prosecuting officer of the State to be a "true bill." A presentment, by contrast, differs from an indictment in that the Grand Jury, acting upon its own motion and without the state or prosecuting officer bringing a bill of indictment, accuses a person of a crime for which a bill of indictment is subsequently framed. Thus the people, acting through their duly convened Grand Jury, have a responsibility to serve as a check against the awesome authority of the State being brought to bear against an individual through the Grand Jury's power to review the State's evidence before bringing an indictment. Moreover, the people, through the Grand Jury's authority to make a presentment, on its own motion, have the authority to require that the power of the State be brought to bear against criminals, who for one reason or another, the State has failed to pursue. Therefore, we find another example of how the Constitution promotes individual sovereignty and the duty of citizens to keep watch over governmental authority. The only exceptions to this rule relate to the exigencies of war and military discipline during time of actual service.4
The next clause is commonly referred to as the "double jeopardy" clause and reads no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Simply stated this clause means that a person can not be exposed (in the sense of being subject to the authority of the court) to the risk that he or she could lose his or her life or limb more than once for the same transgression. It does not protect a person who transgresses again, but only that person who has stood trial for an offense and not been found guilty. It is designed to enable that person who has been tried for a particular offense to go on with his or her life free of the fear that he or she could face charges for the same accusation over and over again.
The following clause is our famous protection against self-incrimination. It states that no person "shall be compelled in any Criminal Case to be a witness against himself." The meaning accords with the general understanding, namely it protects an individual, accused of a crime, from being forced or constrained to testify or give evidence in opposition to himself. It was motivated, at least in part, by an aversion to the inquisitorial systems of justice common in Europe (e.g. many are familiar with the Spanish Inquisition). Moreover, it would seem to draw further inspiration from the New Testament gospel message which states that while we are all guilty of sin and therefore deserving of the penalty of death we have an advocate with the Father, Jesus the Christ, who paid the price for our sin and blotted out our transgressions so that we can be saved from the penalty of death. In either case, it is clear that it is more than some last refuge for guilty parties, rather it helps define the spirit of our criminal justice system, wherein a person is presumed innocent until proven guilty.
The next clause is commonly referred to as the "due process clause." It states that no person shall "be deprived of life, liberty or property, without due process of law." Due process of law requires that a just and proper procedure that is fundamentally fair and in accordance with the settled maxims of law or custom of a given community be employed. At a minimum it can be said to require three things: (1) notice to the person that their life, liberty or proper is in jeopardy, (2) an opportunity for the person to be present before the tribunal which pronounces judgment on said matters, and (3) the opportunity to be heard, by testimony or otherwise, for the purpose of controverting or challenging, by proof, every material fact which bears on the question of right in the matter involved. The due process clause of the Fifth Amendment does not apply universally, but rather applies to instances where the government intends to deprive (i.e. to keep a person from having, using, or enjoying) a person of life (i.e. that property of plants and animals which makes it possible for them to take in food, get energy from it, grow, adapt themselves to their surroundings; and reproduce their kind), liberty (i.e. freedom from slavery, imprisonment, captivity or any other form of arbitrary control), or property (i.e. a thing or things owned; especially land or real estate owned). Though limited in scope it is clear from the breadth of the rights enumerated that the founding fathers intended the due process clause of the Fifth Amendment to protect our fundamental God-given rights from being taken arbitrarily and without cause.
The final clause of the Fifth Amendment states that no "private property [shall] be taken for public use, without just compensation." Private property refers to such property that is owned by an individual for his own personal use and enjoyment, separate and apart from public use and/or control. This clause builds upon the protection of the due process clause by providing that an individual's property cannot be taken (i.e. to gain possession of by force or skill; to capture or seize) for public use (i.e. for the use or benefit of the people or community as a whole) without just compensation (i.e. the giving of an equivalent or something to make amends for a loss that is right, fair and proper). This clause demonstrates the importance that our founding fathers placed on private ownership of property. Through the requirement that just compensation be paid to private property owners, whose land was taken for public use, our founding fathers intended to prevent government from placing the cost of public benefits at the doorstep of private property owners.
Our hope is that after reading this column you will no longer be ignorant of the great protections provided to us by the Fifth Amendment. Moreover, we hope that you will look around to judge whether the protections afforded by the Fifth Amendment are being respected by our government today. If you find that our government is not, then we hope that you will join with us in performing the duty of all that love liberty - eternal vigilance. May God bless and keep you and guide you in your pursuit of truth and the fulfillment of your civic duties.