Amendment Five: “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.”
Almost everyone who’s ever seen a courtroom drama is aware of the protection this one grants from self-incrimination. But the fifth amendment, the largest in The Bill of Rights, encompasses all sorts of things and probably should have been broken into multiple amendments, but if that had been the case, there wouldn’t have been an even ten and Franklin was all about the round numbers. So we’re left pulling it apart, as no piece of it is any less relevant, even today, than the others.
It begins by stating that no person shall ever be tried for a crime without first being indicted by a Grand Jury, except in the case of military tribunals, as soldiers fulfilling their duties were, by necessity, held to a different standard during times of war. This was important, given that the idea was to create a nation of relative equals, which is to say with no ruling class, so that no one would be able to be brought up on charges without sufficient evidence that a crime was committed. That way, those in power couldn’t just have their political enemies, say, hanged in the streets for no reason other than because they didn’t like what they had to say.
Moreover, it established the controversial notion of double jeopardy. The idea was that the prosecution only got one shot to prove that a person was guilty. If they didn’t meet their burden of proof, the defendant got off scott-free and couldn’t be brought up on the same charges. Back in those days, that was fine, but as technology advanced and we discovered things like fingerprints and DNA which could, even decades after an acquittal, prove beyond the shadow of a doubt the guilt of someone who had gotten off before said technology was available, we found ourselves constricted by an inability to nail the bastard.
On the other hand, it did, and does, serve a very valuable purpose. It was included just behind the right to protection from false prosecution because it prevented those in power from taking shot after shot at someone who opposed them on the grounds of a piece of new evidence that just happened to show up and fill the neat little hole which the prosecution couldn’t fill before, wasting the time and money of all involved, including the court system itself.
It has become such an issue amongst the judicial circuit that there’s currently debate over whether or not to amend the clause to include extraordinary evidentiary findings after an acquittal has been handed down. This is another case where the founding fathers couldn’t have seen the science coming, but where we need to let go of the word in order for the spirit to continue.
The third clause is the one everyone knows. You can’t be forced, through any means, to testify against yourself. Why is this necessary? Again, it goes back to the British in the colonial era being total jackasses. If a political dissident was brought forth for a charge of which they were actually innocent, they could be coerced, through threats or actual violence, into admitting that they’d done it. It happened. Often enough that the founding fathers felt the need to protect us from it. It’s why a statement attained through any sort of coercion is inadmissible. Over the years, that protection has become even more stringent by putting into place a number of more specific guidelines for law enforcement to follow, as they were smart enough, in the past, to realize that violence wasn’t the only way to get someone to break. They could also deprive them of sleep, food, water, bathroom breaks and all the other things that can cause someone to eventually lose the ability to think clearly.
The second part of that clause is the one that protects us from being punished, having our assets frozen or being imprisoned indefinitely without due process. This is what’s caused the huge controversy over Guantanamo Bay. Those arrested under the provisions of The Patriot Act, many of whom without sufficient evidence to warrant a real trial, were denied, some for nearly a decade, their right to due process. Instead, we just stuck them in prison to wait for a trial that may never come.
While we’re doing things to make that right now, it shows how important the right to due process is, even for the bad guys, because, as the founding fathers knew and so many of us seem to forget, who the bad guys are is incredibly subjective. While we see the founders of our nation as heroes, a lot of the world saw them as disloyal insurgents. It’s all about perspective and the founding fathers understood that very clearly, having been on the wrong end of it.
Finally, the last clause, which seems only sort of relevant to the rest, stated that the government couldn’t just come and seize your land without giving you due compensation, thus creating the concept we now know as eminent domain. So if the government decides that it wants to build a highway through your house, they can’t just kick you off your land. Instead, they have to pay you fair market value as determined by a set of guidelines. Unfortunately, the estimates for what something’s worth according to eminent domain is about as fair as the blue book value of your car, which drops thousands the moment you drive it off the lot.
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