Monday, January 23, 2012

The Bill of Rights: Article V

It's one of those mornings here in Disneyland-on-the-Potomac that makes winter interesting ... the Federal Government (the largest employer in the region) has decreed that, because of freezing rain and resultant ice in locations around the National Capital Region, late reporting (up to 11:00 AM) for work is authorized. By afternoon, the temperature will have risen to near 50, and all that ice will have turned back into dirty water. Winter just ain't fun any more.

Nessa gave me a break and wrote yesterday's post (in the process, getting more comments than I get on my own posts), but now it's time to get back to normal and return to our discussion of the Bill of Rights - we've made our way through Amendments I through IV, so today we'll move on to a look at the Fifth Amendment:

"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."

Although this may be what grammatical purists would call a run-on sentence, it nevertheless embodies in its run-on-ness several of the freedoms and rights upon which we Americans have come to rely. If most of us know anything about the Fifth Amendment, it probably comes from movies and TV shows that depict a suspect "taking the fifth" or saying something like "I refuse to answer on the grounds that it might tend to incriminate me." There's more to it than just that, though, if we look at everything it enumerates:

- No prosecution without a properly-presented indictment before a grand jury (except in the case of military personnel accused of crimes in time of war);

- No prosecution twice for the same offense ("double jeopardy");

- No enforced self-incrimination (why you can "take the fifth");

- No forfeiture of property without due process; and,

- Limits on the government's power of eminent domain (the seizure of private property for public use).

All of these rights have been limited to some degree over the years, and some are in particular danger today, particularly the power of protection against the power of eminent domain. The Supreme Court decision in the case of Kelo v City of New London (docket #04-108) interpreted the Fifth Amendment to allow the government to seize private property on behalf of a real estate developer, on the theory that the public benefits economically when a developer can replace private property with a commercial development that will, in theory, generate positive economic benefit. The government's power to seize personal assets is also growing, particularly as part of the war on drugs in which the authorities impound homes, cars, aircraft, and other assets of convicted drug dealers.

The Fifth Amendment isn't one of the articles of the Bill of Rights we think about very often, but it's very important, particularly when read in conjunction with the Sixth Amendment, which we'll discuss tomorrow. For now, though, I need to get ready to face the hibernal music and make my slippery way to work.

Have a good day. Know your rights, but also your responsibilities. Both are more important than ever as we draw farther and farther away in time from the world in which the Founders wrote the Constitution and the Bill of Rights.

More thoughts tomorrow.



eViL pOp TaRt said...

I'm glad there's no double jeapordy, otherwise people could be subject to judicial harassment.

But I didn't know that was the Amendment on which the question of eminent domain rested, The Kelo v. City of New London decision opened a real can of worms and potential for abuse. It may have provided room for the camel's nose in the tent, ultimately leading to arbitrary seizure of property.

"Your house, Ma'am? No we are going to grab it so a developer can make a Wal-Mart or strip clujb. We need the taxes and jobs."

Mike said...

From what I remember the company that took the ground in Kelo went out of business 5 years later.