Ranking the Bill of Rights, Number 3: The Fifth Amendment

This is where the men are separated the boys; the women from the girls; the toddlers from the infants. We have reached the top three. Without further ado, I present the Fifth Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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.”

There’s quite a bit going on in the Fifth. What puts the Fifth in the top three is its guiding philosophy, which attempts to protect the individual against unjust and arbitrary uses of government power. Much of this is done through procedural constraints on the government. Prosecution wasn’t satisfied with the jury’s decision and wants to try the case before another jury? Too bad: No double jeopardy. Want to transfer a private homeowner’s property to a private company? Not happening.* The D.A who prefers mild to moderate public opinion about crimes is angry about the extent of a crime’s infamy and wants to punish the individual without a Grand Jury?** Well, he can’t.

*Well, not exactly. The Supreme Court radically misinterpreted the Fifth Amendment in Kelo v. New London, permitting such a transfer. The Fifth Amendment, though, is certainly not to blame for this fiasco.

**This is a purposeful misinterpretation of the infamy clause for the sake of humor. In reality, whether a crime is infamous depends on the nature of the punishment, not public reaction.

The Fifth Amendment is forward-thinking, establishing the rule of law through procedures to ensure just deliberations. Certain clauses, such as a right against self-incrimination, may appear merely to be unnecessary obstacles against the prosecution.  Nonetheless, in the long run, it helps to prevent manipulative and forced confessions. The Fifth Amendment, like the Ninth, recognizes that there are natural rights that exist before the establishment of the government. The government does not grant these rights, rather they are innate and can only be divested given proper procedure, due process.

In fact, the Fifth Amendment has got to get some props for being the precursor to the VERY important 14th Amendment, which applied due process to the states. The procedural aspect of due process is crucial for maintaining the rule of law in the United States, by maintaining that individuals cannot be deprived of life, liberty, and property without a hearing, notice, and neutral judge. We take for granted that the U.S. is a bastion of the rule of law, but, the reality is that the Fifth was crucial in establishing this premium on the rule of law. I’m not as big of a fan of some applications of substantive due process, but that is once again no fault of the Fifth Amendment. Nonetheless, it has been used in important and beneficial ways including protecting the right to marry someone of a different race (a case whose name was the most appropriate for its substance in the history of the Supreme Court) and allowing a non-violent mentally ill individual to not be confined.

A skeptic of the Fifth may be dismissive of the Grand Jury clause, for instance, since it is admittedly fairly easy for a Grand Jury to indict someone on a charge. Exclusionary rules don’t apply and generally standards for evidence are laxer. Defendants don’t even have a right to have their lawyers present during Grand Jury hearings. But, doesn’t this make sense? One is still innocent if indicted. Someone is indicted if they exceed a certain threshold probability that they committed a crime. To get a sense of whether a potential defendant breaks the threshold, it helps to have as much available information as possible. This is not to say the illegally obtained evidence will matter in the actual trial. In fact, it does not, and, arguably, should not (although, a good argument can be made for punishing the police officer who illegally obtained the evidence as opposed to excluding it). But, if certain evidence or statements made by the defendant without the lawyer hint at guilt, it is possible that guilt will be established even with all of the procedural constraints of a jury trial. It is the actual jury (or judge), then, that makes the decision that matters.

The Fifth Amendment, unlike other Amendments in the Bill of Rights, frequently has an impact on the justice system. There is constantly an incentive for zoning boards and other state entities to take individuals’ private property. And, there certainly would be much more incentive for the police to try their darnedest to force a confession from a defendant during a state of emotional fragility if it were not for the Fifth. Compared to the amount of arbitrary use of police power that currently occurs (which is non-trivial), the amount that would occur without the Fifth is presumably significantly more. The Fifth Amendment prevents the government from taking actions (or having those actions count for anything in the court) that it has a strong incentive to take. This is what puts the Fifth Amendment in the top three. Other amendments, like the Ninth, are just as awesome philosophically but haven’t had the important impact and constraining power that the Fifth has had.

Accordingly, for effectiveness and substantive excellence, the Fifth Amendment finishes third.

6 responses to this post.

  1. Posted by Alex on September 16, 2009 at 6:01 PM

    Huh. I’m surprised 4 beat out 5. I hope you don’t put 4 as #1…


  2. Nolo contendre with Josh on the 5th – he will be representing me sometime in the not to distant future.


  3. Corrected version:

    Nolo contendere with Josh on the 5th – he will be representing me sometime in the not to distant future.


  4. […] “Ranking The Bill of Rights Series” is back and better than ever. Why such a time lag between the Number 3 ranking and the Number 2 ranking? Let’s just say it’s because the decision was incredibly […]


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