Our Founders created the Constitution and Bill of Rights to guarantee the American people certain freedoms, liberties and rights. Over the years those rights have been trampled, manipulated and at times, grossly misinterpreted.
This series will focus on examples of just how many of our rights have virtually been lost.
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.”
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
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.
The Grand Jury Clause exception applies to military personnel. Our Founders 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.
The Uniform Code of Military Justice lays out specific rights of military personnel and procedures for trials for those serving in the armed forces.
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 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.
The Self-Incrimination Clause is one of the most familiar parts of the Constitution to the American people. This clause guarantees that you do not have to testify against yourself in criminal proceedings.
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.
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 Miranda Warning went into effect in 1968 after alleged police intimidation in the case of Miranda v. Arizona.
The Due Process Clause guarantees that the government cannot take your “life, liberty, or property” without following a “due” process which 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.
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 taken 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.
The Eminent Domain Clause, also known as the “Takings Clause,” states 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.
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.
Just reading through this, numerous violations come to mind that we’ve seen over the years and primarily with the current administration.
Here is a snippet where Judge Andrew Napolitano talks to Shepard Smith about drones being unconsitutional.
The city of Brooklyn battled eminent domain over a basketball arena.
The National Defense Authorization Act (NDAA) for Fiscal Year 2012 passed the House on December 14, 2011, the Senate on December 15, 2011, and was signed into law on December 31, 2011, by President Obama.
Aside from the myriad of other provisions in the bill, it also authorizes the indefinite military detention of persons the government suspects of involvement in terrorism, including US citizens arrested on American soil. Although the bill’s sponsors maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress “affirms” this authority and makes specific provisions as to the exercise of that authority.
The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and some media sources which are concerned about the scope of the President’s authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces. The detention powers currently face legal challenge.