The Fifth Amendment – The Story of the Bill of Rights
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The Fifth Amendment – The Story of the Bill of Rights

September 24, 2019

The Fifth Amendment. 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 really a grab bag, so at least three different ideas here: the idea of a jury, the idea of fair procedures, and the idea of protecting private property. Double jeopardy is extremely important. Can you imagine if the state or federal government has the authority to put you on trial over and over again until they get a guilty verdict, or until they get the verdict that they want? The grand jury is designed to prevent the government, the prosecutor, from bringing charges willy-nilly against an individual. And the idea there was, we would have real people like you and me sitting on a jury deciding if you did something wrong, not just a judge in a red gown or a black outfit, as they wear now, but a jury of people. One of the aspects of the Fifth Amendment, which is a very important piece, which is the right against self-incrimination. In our court system, you are innocent until proven guilty. And so, if the court is going to assume that you’re innocent until a prosecutor can come up with evidence that shows that you’re guilty, the government cannot make you say that you’re guilty against your will. The due process clause is certainly the most important part of the Fifth Amendment. Life, liberty and property cannot be taken from you without due process of law. The Framers were very aware that the criminal justice system and the legal system generally could be the source of all sorts of abuse. It’s a setting in which the government is authorized to really take complete control over an individual’s life, and giving the government that kind of authority is both necessary to have an ordered civilized society, but extremely dangerous. And so the idea is to figure out how do you create a system that gives the government the power it needs to have to punish wrongdoers and to settle private disputes without giving the government the power to be abusive.

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