The Fifth Amendment, One Amendment, Five Constitutional Rights

Sep 15, 2010
David J. Shestokas

Fifth Amendment Shield Against the Government - Akhil Reed Amar

The Fifth Amendment covers subjects in addition to the well known right to remain silent. There are five distinct constitutional rights.

The Fifth Amendment is part of the Bill of Rights, passed by the First Congress to complete a promise made by the proponents of the Constitution during the ratification process that specific provisions regarding limitations on the Federal government would be added once the Constitution was ratified. James Madison introduced the Amendments to the First Congress in 1789 and they were ratified in 1791.

The Fifth Amendment

The Fifth Amendment reads: "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."

This language principally deals with basic federal criminal procedure involving grand juries, double jeopardy, self-incrimination, and due process. Additionally, there is language preventing the government from taking property without compensation to the owner.

Grand Juries

Grand juries originated during Britain's early history, to protect citizens from being charged with criminal acts simply by a decision of the king. It was designed as a citizen group to stand between a citizen and the government at the very first level of the criminal process.

This creates a right to have a group of citizens decide if a prosecution should go forward. The Fifth Amendment only requires grand juries for federal cases. State criminal prosecutions may commence by other procedures.

Double Jeopardy

The Double Jeopardy Clause is designed to protect an individual from successive prosecutions for the same alleged act, to ensure the integrity of a not guilty finding, and to preclude the government from having the defendant suffer the emotional, psychological, physical, and financial difficulties attached to multiple trials for the same alleged offense. The Double Jeopardy Clause includes three different rights:

To not face a second prosecution following a not guilty verdict
To not face a second prosecution following a guilty verdict
To not receive multiple punishments for the same offense

“Jeopardy” attaches once a defendant faces the danger of conviction. Jeopardy does not attach without the risk of a guilty verdict. In the event of a mistrial, in most circumstances, and a retrial is legally possible. The Double Jeopardy protections apply to both federal and state prosecutions.

Self-Incrimination

The Fifth Amendment protects not only criminal defendants, but also criminal suspects from being forced to give testimony or make statements that may be used against them. A witness in a proceeding, who is not the defendant, may "plead the Fifth" and decline to answer questions if the witness believes such answers may be incriminate him in criminal activity.

This clause of the Fifth Amendment is one element of the Miranda warnings, which also include advising a suspect of his right to counsel as provided in the Sixth Amendment. As a result of the Miranda v. Arizona decision any time law enforcement takes a suspect into custody, the suspect must be made aware of all his rights. If law enforcement fails to inform the suspect of his rights, the evidence obtained becomes subject to the exclusionary rule. This Fifth Amendment guarantee applies equally to the state and federal governments.

Due Process Clause

Due process is guaranteed for all citizens regarding the rights, guarantees, and protections provided by the U.S. Constitution and all laws passed under the Constitution’s authority. Absent due process the government cannot deprive someone of life, liberty, or property.

Due process guarantees a judicial proceeding that is fundamentally fair, orderly, impartial and just. The Fifth Amendment Due Process Clause applies only to the federal government. Rights to Due Process in state proceedings were guaranteed by the identical language in the Fourteenth Amendment.

The Courts have developed two types of due process. Procedural Due Process relates to judicial or administrative proceedings. Substantive Due Process protects those rights that are fundamentally “implicit in the concept of ordered liberty”.

Just Compensation Clause

Under the concept of “eminent domain” the government may take property for public use. The Just Compensation Clause requires a government doing so, at any level local, state or federal to compensate justly the property owner whose property is taken. J

ust compensation has been interpreted as fair market value, defined by what a willing, unpressured buyer would pay in an arm’s length transaction between unrelated parties. In 2005, the concept of public use was controversially extended by the Supreme Court to include government taking property from a private owner to make that property available for private commercial development.