Amendment Five to the Constitution was ratified on December 15, 1791. It provides several protections for American citizens, including protection from self-incrimination, guaranteed due process and equal protection before the law, access to grand jury trials, and financial compensation in response to the government’s seizure of private property. The original text is written as such:
“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 [sic] 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.”
Historically, the Fifth Amendment draws significant influence from English common law. The grand jury clause specifically dates back to the Magna Carta, and was designed to protect accused persons from prosecution by the English royalty. In keeping with that intention, the Constitution’s framers opted to adapt the grand jury to the Constitution, so as to protect citizens from prosecution by the federal government. While the grand jury protections in the Fifth Amendment are confined to federal courts, every state in the country – with the exceptions of Connecticut and Pennsylvania – have since created their own versions of the grand jury for their own court systems. In a grand jury trial, the Fifth Amendment allows accused individuals to challenge any grand juror on the grounds of bias or partiality. These challenges have to be supported by evidence that proves the partiality, which differs from the peremptory challenges found in trial juries. Grand juries also have the ability to investigate the crimes of the accused, but they can not hire government officials to do so.
Two additional protections provided by the Fifth Amendment are the Double Jeopardy Clause and defense from self-incrimination. The former is designed to protect citizens from repetitious accusations of the same crime. In practice, this is meant to keep the government from forcing a citizen through the long-term process of non-stop legal action. In the time since the Amendment’s creation, several courts have determined that a citizen is protected from second prosecutions after convictions and acquittals, and that they will not suffer several different punishments for the same crime. The Fifth Amendment’s protection from self-incrimination allows citizens to not have to testify in court if they feel that it might incriminate themselves. In modern times, this protection has been most famously represented in the 1966 Supreme Court ruling Miranda v. Arizona. The court ruled that the Fifth Amendment’s protections extends to any everyday situation wherever a citizen’s civil rights might be threatened. In police actions for instance, an arrested suspect must be informed of their “Miranda rights,” including the right to remain silent, to have an attorney present, and to be provided an attorney if they do not have, or can not afford to hire, one.
Due process, as promised by the Fifth Amendment, expects the government to recognize all the Constitutional rights of citizens before depriving them of their life, liberty, or property. In the context of court proceedings, this protection is meant to ensure that citizens receive a fair trial. These protections branch off into two distinct versions of due process. The first type – substantive due process – gives all the parties in a legal trial the right to be heard, maintains constant notifications and updates for all the parties, and grants the entire court the proper jurisdiction to make a decision. The second type – procedural due process – is a 20th century creation that provides an additional layer of protection to the substantive rights, to the extent that they are treated as “implicit in the concept of ordered liberty.”
The final segment of the Fifth Amendment is the Just Compensation Clause. Although the federal government has the Constitutional authority to acquire private property for public works, the Amendment requires them to give financial compensation to the party whose property has been taken. The specific dollar value depends on the property being taken, and is determined by the market value of the property at the time of the sale. A recent development pertaining to this scenario emerged in the 2005 Supreme Court decision Kelo v. City of New London, where it was determined that a city has the Constitutional authority to take private property for commercial development. The justification for this was that the new commercial property would help bring economic benefits to a place that was considered “sufficiently distressed to justify a program of economic rejuvenation.” While several states have since passed their own amendments to counter the Kelo decision, it remains a valid law under federal authority. The Fifth Amendment is most commonly recognized for its legal specifications, more so in the larger context of court trials, law enforcement, and financial compensation.
Written by Nicholas J. Dilley, Ronald Reagan Presidential Library & Museum