Robbins: Understanding the Fifth Amendment
A guy walks into a bar and says, “I’ll have a fifth!”
Likely that would raise some eyebrows.
The same guy walks into a courtroom and says, “I’ll take the Fifth!”
Well, likely not so much.
Unlike so much else of our Constitution — take the lonely Third Amendment, for example (the one about quartering troops in your home) — the Fifth has entered our consciousness and common lexicon. “I’ll take the Fifth!” is the stuff of movies.
So, um … exactly what is it? What does it say? And, like Stretch Armstrong, how far can it be strained before it snaps?
Let’s first do a little Constitutional geography. The Fifth, not illogically, comes between the Fourth and Sixth amendments. The Fourth deals with the right against unreasonable searches and seizures. The Sixth deals with trial rights (the right to a speedy trial and a jury before one’s peers).
If you believe in the cardinal primacy of the amendments—that they are rights (especially the first 10 which constitute the Bill of Rights), the Fifth is, well … the fifth-most important, right after the First (freedom of religion, speech, the right to assemble and the right to levy grievances against the government), the Second (the right to bear arms for the sake of forming a militia for the common defense), and the aforesaid Third and Fourth. By such reasoning, the Third at one time must have been a big deal and the Fifth would get you on or at least near the podium.
So, what is it?
In lay terms, what you likely know is that it is the right to keep your yap shut — the right against self-incrimination.
But, as Billy Mays, the shoutingest infomercial pitchman ever, was found of saying, “But, wait there’s more!”
Its full text goes like this: “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.”
Sort of like the primordial seed that expanded with the Big Bang, this one packs an outsized punch.
Let’s take the “you can keep your yap shut” part first. The key phrase is this, “…[one] shall [not] be compelled in any criminal case to be a witness against himself..” There are three key points: first, the right extends only to criminal matters; second, you must be the one on trial or else what you don’t want to say may lead to criminal charges against you; and third, if one and two are true, you are not required to assist the state in criminally pillorying you. Stating this last point more succinctly, the state will have to prove its case against you without you lending a hand or giving the state an assist. “Ah, no. I think I’ll take a pass!”
Another biggie packed into the scant 108 words of the amendment is the protection against double jeopardy. Nope, that’s not a game show that’s twice the fun. Instead it is the right — even with the funny 18th century spelling — to be free from being tried for the same alleged offense (or offence) twice.
Unlike baseball, which was invented 50 years before the Fifth was passed, the draftsmen did not hold up the National Pastime as a model. Rather than three strikes before you’re out, the state gets only one swipe of the bat. If you are charged and found not guilty, there are no do-overs. Off you hie to get on with your life.
What else is pretty consequential about the Fifth are these gems: “…[one may not] be deprived of life, liberty, or property, without due process of law…” and “… private property [shall not] be taken for public use, without just compensation…”
Let’s take the second of these first. What is means is that the government can’t willy nilly take your stuff … even if the government thinks it has a good reason to. Now, you’ll note this isn’t absolute; sometimes the government can take your stuff, but if it does, they have to pay fair value for it.
“Due process” deserves a quick explanation. What due process means is fair treatment through the normal judicial system. I cannot be treated one way and you another. We must both be treated the same way and in the normal course.
Due process is the legal requirement that the state must respect all legal rights that are owed to a person.Due process balances the power of law of the land and protects the individual person from it.
Keeping that in mind, the “due process” clause of the Fifth Amendment means that before the government deprives you of your liberty (read this lock you up), your life (the gallows!), or your property, the state must follow the normal course of leveling charges against you, trying you in the normal manner, and finding you guilty.
As a preview of coming attractions, “due process” pops up again in the 14th Amendment, Section 1, adopted in 1868 and which deals with Reconstruction issues following the Civil War. In the context of assuring the rights of citizenship, the due process language is the same as in the Fifth.
Hollywood’s glossy veneer notwithstanding, the Fifth Amendment truly does some heavy lifting. It affords us all with key protections against a potentially overzealous or rapacious state. If not exactly a cozy fire cracking in the hearth, its protections nonetheless offer a warm glow and security in our person, liberty, and things.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.