Fifth Amendment Facts
- Self-Incrimination
- Double Jeopardy
- Trial By Grand Jury
- Takings Clause
- Due Process
The Fifth Amendment is a part of the Bill of Rights; a document appended to the Constitution of the United States to ensure the protection of its citizenry and their property, among other things. Simply and clearly worded, the Bill of Rights offers a number of reassurances to the general public, acting as a sort of patch to the body of the Constitution and a promise of the federal government not to behave in ways similar to the monarchical states of Europe. Penned by James Madison, who was a primary contributor to the Federalist Papers and would eventually become the fourth President of the new republic, this amendment, in particular, provides a range of protections.
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1. Self-Incrimination
Many are aware of this aspect of the Fifth since it has been popularized by a host of procedural law enforcement shows and courtroom dramas. But examining the heart of this clause reveals the bedrock for the American justice system. By claiming this protection, a person accused of a crime is not required to give incriminating testimony upon which they may be convicted or condemned. In the new republic, just as today, the burden of proof is laid upon the accuser or prosecuting party, even if that party is the U.S. Government. This means they must provide convincing evidentiary support of their claim, not pressure the accused to do so through testimony, documents or materials.
2. One Crime, One Shot
Another facet of this amendment is known as a Double Jeopardy Clause. This means that a single individual may not be tried for the same crime twice following either conviction or acquittal. While the 14th amendment also treats with this matter in greater detail, the clause reflects a significant concept held by the original legislators of the republic. Namely, that the federal government’s power was never intended to be unlimited and it should not be permitted to punish, incarcerate or execute even guilty citizens without oversight. On the contrary, the various checks and restrictions present in both the Constitution and the Bill of Rights were expressly intended to tie the hands of the central government, even after the failure of the Articles of Confederation.
3. Trial by Grand Jury
As noted by the National Constitution Center, a grand jury is one of the protections of the Fifth that is not extended to the states by the 14th amendment. It’s important to note the difference between a garden variety jury of peers and a grand jury, which are both drawn from the general populace. Unlike an ordinary panel, a grand jury operates in secret, and each juror is free to open criminal proceedings related to any evidence they consider relevant. They are also empowered to compel a witness to testify in the absence of their legal representatives—a protection deemed sacred by today’s Americans and guaranteed by Miranda. As a result, grand juries are empaneled only in the instance of severe federal crimes.
4. Not Without Compensation
Most of the republic’s early laws revolve around the concept of property—whether a citizen’s right to it, the government responsibilities where private property is concerned, or how and where it’s seizure may be compelled. The Fifth offers concrete protection against unlawful seizure without due compensation when eminent domain is proven for the public good. One path legislators have found around this seemingly stable clause is the concept of Civil Forfeiture—in which cash or property may be taken from a private citizen, even without charging them of a crime. While it is, in fact, a gross violation of this amendment clause, the loophole offered is that the property is charged with the crime and not the citizen.
5. The Due Process of Law
No individual may be imprisoned without this, which is also expanded by the 14th amendment. It refers to the process of legal proceedings in the accustomed and legitimate manner—which also gives the formally accused individual an opportunity to confront their accusers. The original authors of the Constitution and the Bill of Rights considered this foundational to individual freedoms, likely because it derives from a feature of English common law first outlined in the Magna Carta in 1215.
Each of the amendments in the Bill of Rights deals with a vital oversight or provision neglected by the Constitution, just as every change that followed holds an essential place in the history of the republic. However, many legal experts agree that the Fifth Amendment provides a broad scope of protection, none of which may be dispensed with or disregarded.
