The draftsmen of the United States Constitution borrowed heavily against the 1689 British declaration: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, also known as the English Bill of Rights. Their ideological base is obviously similar but the Framers of the US Constitution took pains in tooling ours to specify and protect certain personal freedoms that had been too easily infringed upon by the Crown. Guarding the American public from subjective law and unfair federal manipulation in the court was specifically important to the authors of the Constitution, as their Puritan roots had suffered under unchecked power. With five clauses, the Fifth Amendment is certainly the longest amendment in the Bill of Rights, and it details terms touching on both civil and criminal law.
In West’s Encyclopedia of American Law (2nd edition) the five clauses of the Fifth Amendment are broken down into these layman’s terms:
“(1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense, (2) the right to be free from multiple prosecutions or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by due process of law, and (5) the right to receive just compensation when the government takes private property for public use.”
The first clause of the Fifth Amendment grants civilians the right to a grand jury. (The sense of the term grand is taken from the French word for “large.”) The practice stems from twelfth-century England during the rein of Henry II, and was the first form of jury trial in England. Then called a “presenting jury,” the obligatory procedure was part of the Assize of Clarendon statute of 1166. This statue was the beginning of England’s conversion from judicium dei (trial by God) to the more humane evidentiary system we enjoy today. The practice of using divine intervention as proof of innocence can be traced back to Mesopotamia and the Code of Hammurabi but even in England trial by battle was not repealed until 1819.
Grand juries today have no less than sixteen members and no more than twenty-three, are comprised of laymen, and held in private. Being conducted by the prosecution, their duty is to establish whether sufficient evidence exists against the accused to warrant legal action. If a case is found to be valid and holding proper evidence, the grand jury enters their formal charge as an indictment. A grand jury does not judge the accused of guilt or innocence, only if probable cause exists. Conversely, the grand jury clause does not apply to members of the armed forces (including militia), as they may be tried without indictment, in war or peace, for crimes committed.
Under the Double Jeopardy Clause, once a defendant has been acquitted or convicted of their accused crime, they may not be re-tried for that same offense again. Massachusetts was the first American colony to provide this legal protection, but the law arose from the Roman courts and can be considered basic jurisprudence. The Massachusetts law stated,
“No man shall be twise (sic) sentenced by Civil Justice for one and the same Crime, Offence, or Trespasse.”
However, at the 1791 ratification of the Bill of Rights, Massachusetts was one of only two colonial constitutions that held protections against double jeopardy trial. The specificity of the clause was especially important because, in England, trial findings were frequently disregarded by the Crown if justice was not to the royal liking. This practice sat fresh in the minds of the Framers, and they drafted the clause to include protection from wrongful convictions doggedly pursued by government and from the social, fiscal, and personal suffering brought on by legal battle against endless prosecution.
This clause does not apply to civil cases brought by private parties. Since there are two branches of the United States legal system, civil (awarding monetary compensation for grievances) and criminal (administering punishments for offenses), a defendant may be tried in both courts for the same accusation without breaching the amendment. A fine example of this was the seemingly endless, eight-month, cake-and-circus trial of O.J. “the Juice” Simpson in 1995. He was acquitted of double homicide in the criminal trial but the 1997 civil case found him guilty and held him accountable for $33,500,000 in damages to the families of Nicole Brown Simpson and Ronald Goldman.
The “self-incrimination” clause of the Fifth Amendment in the American Bill of Rights is the most well known of the five-part amendment. The article provides citizens with the right to refuse to testify against themselves as witness or otherwise be forced to divulge self-incriminating information. These protections can be used during any stage of legal action, hold in federal or state courts, and apply whether the proceedings are criminal, civil, or judicial. While today this clause is popularly believed by civilians to be tantamount to a guilty plea, its roots in seventeenth-century England stem from years of religious persecutions and torture as a routine way to procure confessions.
It was ruled by the United States Supreme Court that for a confession to be held as evidence in a court of law it must be voluntary. Torture techniques were still used in America as late as 1930 to coerce defendants into involuntary declarations of guilt. In Brown vs. Mississippi three black tenant farmers were accused of the murder of a white plantation owner. On March 30, 1934, two days before the “trial,” the three men were abducted by a deputy sheriff (who brought along a good-sized lynching mob) and individually tortured until they confessed to the killing. Their confessions were used as the primary evidence against them, and after a one-day trial the men were found guilty and sentenced to death. Their case was appealed by then-Mississippi governor Earl Brewer and the convictions were overthrown by the Supreme Court in February 1936.
Cases such as this were, most shamefully, not uncommon in American history. Although police tactics of interrogation became less physical—due to court rulings—the Court still found them as no less coercive. The legal system then saw a rash of cases in which the Court ruled that admission of guilt prompted by physical torture was not the only form of involuntary confession. In fact, any form of “unfair and inherently coercive context” was grounds for a precluded confession that could not be used as evidence.
Continuing reversals of sentences led to the landmark 1966 case of Miranda vs. Arizona. Ernesto Arturo Miranda was taken into custody on March 13, 1963 and delivered for interrogation in a kidnapping/rape case. During the line-up, police inferred that Miranda had been positively identified by the victim, and he confessed two hours later during questioning. However, Miranda was never informed of his rights to silence or an attorney. Ernesto Miranda had a list of convictions trailing him from eighth grade; more than a few for sexual offenses. After his cross-examination he recognized and acknowledged the eighteen-year-old victim (“That’s her.”) and signed a written confession topped with the avowal:
"…this statement has been made voluntarily and of my own free will, with no threats, coercion or promises of immunity and with full knowledge of my legal rights, understanding any statement I make can and will be used against me."
Miranda’s trial went forward in June of 1963 and he was convicted, mostly due to his own confession, and sentenced to serve twenty to thirty years’ imprisonment.
The American Civil Liberties Union took up his case in 1965 and petitioned three highly regarded criminal defense lawyers to take his case pro bono in a consolidated effort with three other cases: Westover vs. United States, Vignera vs. New York, and California vs. Stewart. Their argument in Miranda’s case was that his substandard education and evident emotional maladjudustment created a man who was unaware of his rights (as they were not presented to him at the time of questioning) to silence or counsel. Subsequently, the police interrogation was a de facto coercion. Upon judgment Chief Justice Earl Warren wrote,
"…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
His rape conviction was overthrown but Miranda served time for the kidnapping. This still highly controversial interpretation of the Fifth Amendment’s protection from self-incrimination was probably far broader than the Framers ever intended. It is now mandatory for local and state police officers to give suspects their “Miranda warnings” before any questioning: “You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you before any questioning begins.”
During the 1966 Miranda trial, the writings of “Freeborn” John Lilburne were cited in the majority opinion. This seventeenth-century Puritan became a folk hero as an English freedom fighter and lifelong dissenter. Lilburne died some 350-odd years ago but had a hand in the fourth clause of the Fifth Amendment in the American Bill of Rights. He spent half of his short life in prison for his loud, ceaseless defense of personal freedom. As a young man in 1637, Lilburne met a Puritan preacher, John Bastwick, whose ears had been cut off as punishment for writing religious tracts condemning the Archbishop of Canterbury. Bastwick’s plight struck Lilburne so deeply that he traveled to Holland to print The Litany and other bishop-bashing publications for English distribution.
That same December, Lilburne was arrested for “printing and circulating unlicensed books” after a Stationer’s Company informer reported his activities. He was taken to the Court of Star Chamber and asked how he would plead. Lilburne refused to answer the oath ex-officio before hearing the charges against him and twice asked for the accusations to be presented in English instead of Latin. Subsequently he was twice taken into prison. The second time he refused the court’s demand, Lilburne was flogged, dragged behind an ox-drawn wagon, and publicly pilloried. After these punishments, as he stood at the stocks, he spoke to the gathering crowd, praising John Bastwick and the Puritan plight of freedom of religion in Britain, until he was gagged. John Lilburne helped to form the radical politics of the Levellers. As the original social libertarians, they rallied and agitated during the English Civil War (1642–1648), attempting to secure enough constitutional restructuring to ensure personal freedoms and equal rights for the citizens of Brittany despite class and wealth (or lack thereof).
Other Puritans, those who chose to flee England for the perceived freedom of the New World, took with them the ideology of the Levellers’ appeal, The Humble Petition of Many Thousands. The tract had been presented to Parliament in 1647 and listed thirteen mandates, of which the entitlement to protection from self-incrimination was the third down. The indignities, tortures, and religious humiliation suffered by the Puritans in seventeenth-century England were still fresh in the minds of the Framers of the United States Constitution when the American Bill of Rights was ratified in 1791.
"…the property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."
De Jure Belli et Pacis
Hugo Grotius, 1625
Seventeenth-century philosopher Hugo Grotius coined the Latin phrase dominium eminens (supreme lordship) during his work as a famously noted author and jurist in the Dutch Republic. Four centuries later the same concept is defined in the American Heritage Dictionary (fourth edition) as, “The right of a government to appropriate private property for public use, usually with compensation to the owner.” This ability is called “compulsory purchase” in the United Kingdom, “expropriation” in Canada and “eminent domain” in the United States of America. It is the power that allows the federal or state government to commandeer a citizen’s private property, land or otherwise, or their rights to that property without the owner’s consent.
The eminent domain clause of the Fifth Amendment in the American Bill of Rights was unused from its ratification on December 15, 1791 until the Supreme Court case of Kohl vs. United States in 1876. The case cited the need for the federal government to retain the right to seize private property to better build American infrastructure. In the Kohl case, private property had been taken by the American government to construct a post office and other federal buildings. In Justice Strong’s written opinion he stated,
“Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed.”
Despite its lapse in nineteenth-century American history, eminent domain has been considered common law practice since the English “Due Process” laws of the late 1500s. In 1606 the first case of eminent domain as law was recorded. To obtain military high ground, an English citizen was forced by the “King’s Prerogative” to dig trenches and other defenses, at his own expense, which would be demolished after conflict had subsided. At the end of the case that came to be known as “The King’s Prerogative in Saltpeter Case” it was ruled,
“…When enemies come against the realm to the sea-coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for defense of the realm; for every subject hath benefit by it. And for this, by the common law, every man may come upon my land for the defense of the realm, as appears 8 Ed. IV, 23. And in such case, on such extremity, they may dig for gravel for the making of bulwarks; for this is for the public and every one hath benefit by it; but after the danger is over, the trenches and bulwarks ought to be removed, so that the owner shall not have prejudice in his inheritance. And for the commonwealth, a man shall suffer damage; as, for saving of a city or town, a house shall be plucked down if the next be on fire. And the suburbs of a city in tune of war for the common safety shall be plucked down. And a thing for the commonwealth every man may do without being liable to an action.”
Fortunately, in our modern system of seemingly endless litigation we are privileged to have legal measures that (hopefully) ensure fairness during the unfortunate event of having property seized by The Man. When the government wishes to acquire privately held land, it first attempts to buy the property for fair value. If the owner doesn’t wish to sell, the government files a court action to exercise eminent domain, and serves or publishes notice of the hearing. At the hearing, the government must demonstrate that it engaged in good faith and that the taking of the property is for public use. The property owner is given the opportunity to respond. If the government’s petition is successful, proceedings are held to establish the fair market value of the property. Before any payment to the owner is made, any mortgages, liens, or encumbrances on the property are paid, deducted from the total value, with any remaining balance paid to the owner. Either side may appeal the final decision.*
Of course, there are widespread abuses of this monumental power over the people…even in little ol’ Fairbanks, Alaska we had the controversial uprooting of an entire neighborhood for the site of the still-unfinished convention center. In fact, the Supreme Court has yet to bar either state or federal governments from “appropriating” private land for private developers who build private commercial developments. “For public use” can go a long way in the eyes of the law. On June 23, 2005, it was ruled 5-4 in Kelo vs. City of New London that the city’s plan of condemnation of private property so it could be economically redeveloped was in the “public interest” and did not violate the Fifth Amendment. In her lone dissent, Justice Sandra Day O’Connor held that,
“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms… the ruling abolishes any distinction between private and public use of property—and thereby effectively deletes the words ‘for public use’ from the Taking Clause of the Fifth Amendment.”