The 5th Amendment

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The 5th Amendment is better known to most Americans than the other amendments in the Bill of Rights because of the familiar phrase "I plead the fifth," often used as a defense in criminal trials. The 5th Amendment also guarantees Americans several other basic rights, including the right to trial by Grand Jury for certain crimes, the right not to be tried or punished more than once for the same crime, the right to be tried only with due process of law and the right to be paid fair compensation for any property taken by the government for public use. The Fifth Amendment reads 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."

Clauses

The 5th Amendment is made up of 5 specific parts containing 6 different clauses, including:

  1. The Grand Jury Clause.
  2. The Grand Jury Exception Clause.
  3. The Double Jeopardy Clause.
  4. The Self-Incrimination Clause.
  5. The Due Process Clause.
  6. The Eminent Domain Clause.

On the page below, you can read a little about each clause. Then, if you would like to know more about that particular clause of the 5th Amendment, just click on the link for more information.

5th Amendment - The Grand Jury Clause

The 5th Amendment opens with the Grand Jury Clause. It reads 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."

The Grand Jury Clause guarantees that Americans cannot be charged with serious federal crimes except with an indictment by a grand jury. This is generally considered to be a protection from corrupt government officials who might try to prosecute people unfairly, because a group of fellow citizens is required to look over the evidence first.

Grand Jury at the Arcadia Hotel fire in Boston, 1913
Click to enlarge
Grand Jury at the Arcadia Hotel fire
in Boston, 1913

Grand juries have great latitude in investigating alleged crimes. They can subpoena people who must appear before them to answer questions about the alleged crime. Grand juries take place in secret, away from the eyes of spectators, the press, judges and attorneys. Only the prosecutor, grand jury members and witnesses are present. Grand juries usually meet only once a week or twice a month, making many grand jury investigations drag on for years. Grand juries do not convict an accused person, they merely look at the evidence and determine whether or not there is enough evidence that points to the person's guilt. If they believe there is, they will inform the court and a trial will proceed.

Many people believe the way grand juries are used today is unconstitutional and inherently unfair to the suspect. Grand juries first hear the evidence from the prosecutor who wants to bring charges against the accused. Prosecutors are not required to show the grand jury any evidence casting suspicion on the charges. Because of this, grand juries are often swayed to prosecute because all the evidence they see is in the prosecution's favor.

In addition, witnesses can not have an attorney present during questioning by a grand jury and are not allowed to call witnesses in their favor. In many cases, they are not even informed if there are any potential charges that may be filed against them.

Some people believe this whole procedure has erased the protections the Founding Fathers intended in writing this clause and they lay the blame at the foot of the Supreme Court.

You can learn more about the Grand Jury Clause here.

5th Amendment - The Grand Jury Exception Clause

The Grand Jury Clause guarantees all Americans the right to have serious federal criminal charges reviewed by a grand jury except to military personnel. The Grand Jury Exception Clause reads like this, in bold:

"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."

Why did the First Congress leave the military out of this guarantee? The simplest answer is that they did not want the judiciary meddling at all with control of the military. They wanted to keep military control in the hands of the people, rather than in the hands of a small group who might abuse its power in their own interests. Consequently, the Founders gave authority to regulate the military solely to Congress in the Constitution.

The Founders also left military personnel out of the Grand Jury process in order to assure they would receive a fair trial if they were ever accused of violating the law. They believed it would be very difficult for a civilian jury and civilian judge to understand the conditions on the battlefield and determine what proper action should be in such circumstances. Because of this, if a soldier were to be tried by civilians he might not get a fair trial.

Soldiers might also exercise too much restraint on the battlefield, putting themselves and their fellow soldiers at risk, if they were afraid they might be tried by a civilian court for their actions when they returned home. Leaving civilians out of the process is an assurance to soldiers to get a fair trial.

This is not to say that soldiers have no rights during a trial. The Uniform Code of Military Justice lays out specific rights of military personnel and procedures for trials for those serving in the armed forces.

Find out more about the Grand Jury Exception Clause here.

5th Amendment - Double Jeopardy Clause

The 5th Amendment's Double Jeopardy Clause guarantees that Americans cannot be tried twice or punished twice for the same crime. The Double Jeopardy Clause reads like this:

Colonial courtroom

"nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."

The Double Jeopardy Clause is meant to protect people from being tried repeatedly until the government gets the verdict it wants. Without this protection, the government could continually abuse and harass individuals with lengthy, costly and emotional continuing trials. According to the Founders, once a verdict is made, it is final and the person cannot be tried again.

This was an important right to the Founding Fathers because colonial British history included many instances of the King trying people over again when the verdict went against his wishes.

In modern courts, Double Jeopardy protection applies to all cases in which a defendant can be punished, not just in cases where the defendant's life is in jeopardy. People can be tried for the same crime twice if two or more civil entities have jurisdiction over the crime, such as when a crime violates both state and federal law. There are also some instances in which a case can be retried, such as if the first case was found to have been fraudulent in some way.

You can read more about the Double Jeopardy Clause here.

5th Amendment - Self-Incrimination Clause

Have you ever heard the phrase, "You have the right to remain silent. Anything you say can and will be used against you in a court of law?" This is the opening statement of the "Miranda warning" that is read to people when they are being arrested. This statement, along with "pleading the 5th" have been popularized in many movie courtroom and arrest scenes. They have made the Self-Incrimination Clause of the 5th Amendment one of the most familiar parts of the Constitution to the American public. This clause guarantees that you do not have to testify against yourself in criminal proceedings.

Solyndra executives plead the 5th
Solyndra Executives pleading
the 5th before Congress when
asked about a loan made to
the company - October, 2011
Solyndra executives plead the 5th
Solyndra Executives
pleading the 5th before
Congress when asked
about a loan made to the
company - October, 2011

The Self-Incrimination Clause reads like this:

"No person... shall be compelled in any criminal case to be a witness against himself."

At one time in English history, people could be tortured for not confessing to crimes they were accused of. English citizens eventually stood up against this injustice and claimed that they had a God given right not to testify under such circumstances. This became the basis for what we know as the right to refrain from testifying against oneself, which was formalized by America's Founding Fathers as the 5th Amendment's Self-Incrimination Clause.

In modern courts, if someone "pleads the 5th," he cannot be assumed guilty simply for not testifying against himself. Any type of forced confession or confession made under duress is thrown out of court. Any confessions made without first being warned that one has the right not to testify against oneself, are also thrown out.

The Self-Incrimination Clause only gives people the right to refuse to testify against themselves. It does not give them the right to refuse other types of physical evidence such as fingerprints, DNA samples or to refuse to stand in a police lineup.

You can read more about the Self-Incrimination Clause here.

5th Amendment - Due Process Clause

The 5th Amendment Due Process Clause guarantees that the government cannot take your "life, liberty, or property" without following a "due" process. The Due Process Clause reads like this:

"No person shall... be deprived of life, liberty, or property, without due process of law."

US Supreme Court Building

Due process means the government must obey written laws whenever it deals with people. Officials cannot make up their own rules on a whim or on the spur of the moment. They must always follow written procedures that are clearly spelled out ahead of time. In other words, a policeman or judge cannot throw you in jail just because he doesn't like something you did. He must first prove that you violated a written law.

The Due Process Clause guarantees that you must be treated fairly and be informed of the issues at stake any time the government deals with you in a criminal or administrative matter.

No one can be deprived of "life, liberty, or property" without due process of law. But what does "life, liberty, or property" mean? Some people think they refer to the generally understood meanings of these terms. Others interpret them very broadly to find all kinds of "rights" that are not listed in the Constitution or anywhere else in the Founding Fathers' writings, such as the "right" to receive a welfare check, the "right" to have an abortion or the "right" to have a driver's license. These things are not listed in the Constitution as rights, but some believe "life, liberty and property," would be deprived if these things were to be denied to someone.

Through its interpretation of the Due Process Clauses, both of the 5th and 14th Amendments, the Supreme Court has gained an enormous amount of power in Americans' daily lives. It has wrested much power away from both the state legislatures and the Congress by defining all of these extra-Constitutional "rights" and putting them off limits to local legislatures.

You can read more about the Due Process Clause here.

5th Amendment - Eminent Domain Clause

The Eminent Domain Clause, also known as the "Takings Clause," promises that if the government ever needs to "take" your property for a public use, such as building a highway, that it must pay you a reasonable amount for the property. The Eminent Domain Clause reads like this:

"...nor shall private property be taken for public use, without just compensation."

Highway

In earlier British history and even in colonial America, it was common for government bodies to take private lands for public uses such as bridges or roads without compensating the previous owner. By the time the Constitution was written, the Founding Fathers had enough of governments taking the property of citizens without paying them back.

In modern times, the Supreme Court has even extended this right to compensation if a government activity has somehow damaged your property or lowered its property value. For example, if an airport was built next to your house and the loud noise caused the property value to plummet.

A recent Supreme Court Eminent Domain Clause case was very controversial because it allowed a local city to confiscate homes in good condition for an economic development project. The city wanted to give the properties to another private developer. The Court ruled this was OK because the economic development would benefit the public. What do you think?

You can read more about the Eminent Domain Clause here.

Books about the 5th Amendment


Amendments:

Preamble to the Bill of Rights
Learn about the 1st Amendment here.
Learn about the 2nd Amendment here.
Learn about the 3rd Amendment here.
Learn about the 4th Amendment here.
Learn about the 5th Amendment here.
Learn about the 6th Amendment here.
Learn about the 7th Amendment here.
Learn about the 8th Amendment here.
Learn about the 9th Amendment here.
Learn about the 10th Amendment here.

Read the Bill of Rights here.

Learn more about the Bill of Rights with the following articles:

Last updated 7/30/12

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