January 13, 2017

January 13, 2017 | Commentary on Rule of Law, Political Process

Bill of Rights at 225: As Government Grows, so Does Need for Fifth Amendment

We're all familiar with "pleading the Fifth" - the privilege against self-incrimination. But there's a lot more to the Fifth Amendment than that.

Along with the Sixth Amendment, it lays the foundation for how government must treat suspects - providing all of us with several protections from arbitrary and abusive government actions.

Under its grand jury requirement governing "capital, or otherwise infamous crime," 23 jurors must decide whether there is sufficient evidence to file criminal charges and proceed with a trial in federal court. The aim is to protect citizens from over-zealous prosecutors.

Since prosecutors run the proceedings and control what evidence is presented, grand juries today are often viewed more as part of the criminal investigation process than as a barrier against abusive prosecutions.

There is one exception to the grand jury requirement; it does not apply to suspects serving in the armed forces. Instead, service members are tried in courts martial because the armed forces must uphold the chain of command and obligations of the military in addition to the rights of the individual. Luckily for service members, Congress enacted the Uniform Code of Military Justice in 1950, which provides them many of the protections civilian defendants enjoy.

The double jeopardy clause bars government from prosecuting someone for the same crime more than once. It also prohibits punishing someone more than once for the same crime. Originally the clause applied only to prosecutions brought by the federal government, but the Supreme Court determined that it also applies against the states.

The privilege against self-incrimination is the Fifth Amendment's best known provision. It is a direct response to abuses of the English crown, including the use of torture to compel confessions and the Star Chamber oath forcing witnesses to answer any question put to them. The Supreme Court's 1966 ruling in Miranda v. Arizona found that the government may not use statements at trial made by a suspect during an interrogation unless he has been advised of his right to remain silent and that his statements may be used against him, and knowingly waived those rights.

The Fifth Amendment also contains one of the most important guarantees in the Bill of Rights: the due process clause. It guarantees that "No person . . . shall be deprived of life, liberty, or property, without due process of law."

Rooted in Magna Carta, the clause was meant to ensure that government remained subject to the law, not above it. Thus, government actors, be they King John at the time of Magna Carta or President Obama and the modern era's army of federal bureaucrats, may not make up rules on the fly - they are constrained by laws. The Fourteenth Amendment contains a similar prohibition on states.

Though the text would seem to simply require the government to take certain steps before taking your home, throwing you in jail, or putting you to death, the Supreme Court has expanded its scope by interpreting "due process" as a font of substantive rights not found elsewhere in the Constitution. This leads to judges declaring their policy preferences as rights protected by the Constitution, particularly under "liberty," which has been interpreted to include the right to marry, earn a living, and direct the upbringing of your children, among others.

The Fifth Amendment's takings clause - "...nor shall private property be taken for public use, without just compensation" - may appear as an outlier in an amendment otherwise concerned with the rights of the accused. But it is a natural follow-on to the due process clause, as each clause deals with the government's ability to take your property.

The takings provision acknowledges the government's power of eminent domain, which allows it to take an individual's property for a public use - such as creating parks or roads. But it requires that the owner receive fair market value for the property taken.

The Supreme Court has developed a body of case law dealing with whether the government owes compensation if it physically occupies but does not take the property, places conditions (such as environmental regulations) on the use of the property, or takes property for "public benefit" rather than public use. A man's home is his castle, and the takings clause recognizes that government may not arbitrarily take that property.

The guarantees of the Fifth Amendment are as relevant today as they were at the time of the founding. Given the ever-expanding reach of government into the daily lives of Americans and a federal code that multiplies exponentially so that the average person unwittingly commits several felonies a day, a constitutional safeguard against arbitrary and abusive government action is vital.

About the Author

Elizabeth Slattery Legal Fellow and Appellate Advocacy Program Manager
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Rule of Law, Political Process

This piece first appeared in the Philadelphia Inquirer.