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 Fifth Amendment is something of a condensed Bill of Rights itself, the most all-encompassing amendment in the Bill of Rights. At first glance the amendment appears to be concerned with fairly technical legal issues. But, in fact, the Fifth Amendment’s five clauses provide some of the Constitution’s broadest and strongest protections against government abuse of power.
The following are short descriptions of each of the Fifth Amendment’s five clauses:
- The grand jury clause: States that a person accused of a federal crime must be formally charged by a grand jury (an impartial group of citizens) before being brought to trial.
- The double jeopardy clause: Prohibits the government from trying a person more than once for the same crime.
- The self-incrimination clause: Gives individuals the right to remain silent if their words might be used against them in court. Refusing to answer questions for this reason is sometimes called “taking the fifth,” in reference to the Fifth Amendment.
- The due process clause: Prohibits the government from taking any legal actions or passing any laws that unfairly deprive a person of life, liberty, or property.
- The eminent domain clause: Establishes the government’s right to take private property for public use (such as for building roads); but it also requires the government to pay a fair price (give “just compensation”) for the property it seizes.
Origins of the Fifth Amendment
Tension between Great Britain and its colonies in America in the middle of the eighteenth century eventually led to the outbreak of the American Revolutionary War in 1775. By 1783 the thirteen American colonies had won their independence from the British Empire. The colonies (now independent states) united under the terms of a document known as the Articles of Confederation.
Under the Articles of Confederation, the individual states (the former colonies) kept most of their governmental power, while the federal (central) government was left quite weak. Within a few years it became apparent that the new nation would require a more powerful central government, especially when dealing with other countries. In 1788 the thirteen original states adopted the U.S. Constitution (see Introduction), which established a strong national government with power divided among a powerful president, Congress (the legislative or law-making body of government), and the Supreme Court.
The Bill of Rights
Nothing in the new Constitution, however, spelled out the people’s rights, and many worried that the new government would become too powerful. To limit the government’s power, a number of amendments (corrections) to the Constitution were proposed immediately after it was ratified by the states. The first ten of these amendments are known as Bill of Rights (see Introduction). These amendments sought to outline the people’s most basic rights.
The Fifth Amendment was written by James Madison, (1751–1836), a Virginia lawyer who later became the fourth president of the United States. Madison wrote a number of the amendments in the Bill of Rights, which were ratified together in 1791 (see Introduction).
Something borrowed, something new
Many of the rights and protections listed in the Bill of Rights can be traced to English common law. (Common law refers to the entire English legal tradition.) In fact, English common law granted English citizens most of the rights outlined in the Fifth Amendment. But the British government had not always honored these rights in England or in the American colonies. So when it came time to propose amendments to the U.S. Constitution, people hoped to firmly reestablish the rights that were supposedly guaranteed under English common law, including the protections found in the Fifth Amendment.
The Fifth Amendment and the Supreme Court
The rights and protections found in the Fifth Amendment are stated in relatively simple language. But the simple language leaves certain questions unanswered about how each amendment should be applied in particular cases. Under the Constitution, the Supreme Court has the power to interpret the laws of the land, including the Constitution and its amendments.
The Supreme Court is the highest court in the United States. Congress (the law-making branch of the U.S. government) decides how many judges sit on the Court. The Court originally consisted of six justices (judges), but since 1869 it has included nine justices.
Typically, the Supreme Court hears appeals of cases that were first heard by lower courts. An appeal is a legal request to have a higher court reconsider another court’s ruling. The Court’s decisions in a case are decided by a simple vote of the justices. These decisions can have a huge impact on how a law is understood and enforced. Over the years, a number of Supreme Court cases have helped clear up some of the questions raised by the Fifth Amendment.
The Grand Jury Clause
The grand jury clause states that “No person shall be held to answer for a crime, unless on a bill of indictment of a Grand Jury.” (This requirement does not apply to trials within the military.) Like a regular trial jury, a grand jury is made up of citizens called together by the government to settle a legal issue. Unlike a regular jury, a grand jury does not decide whether a person is guilty of a crime. Instead, the group (usually sixteen to twenty-three men and women) decide whether there is enough evidence against a person to justify bringing him or her to trial.
Because the courts are part of the government, it is possible for a government to abuse the power to bring citizens to trial. The government could use the courts to harass a person, for example, by repeatedly putting the person on trial for made-up charges. The grand jury is seen as a protection against this sort of government harassment: The government must prove that it has a good reason to believe the accused person should be put on trial.
Bills of indictment
After a grand jury is called together, the government’s lawyer (the prosecutor) prepares a bill of indictment. A bill of indictment is a document that explains the case and lists the evidence that the government has collected against the accused. A grand jury may choose to look at any or all of the evidence listed. The jurors may also question witnesses directly or require them to produce documents as evidence.
If the grand jury finds that the prosecutor has a reasonable amount of evidence to accuse the defendant, it can decide that the bill of indictment is a “true bill” and issue an indictment (a formal charge) against the accused person. However, if the grand jury decides there is simply not enough evidence to link the accused to a particular crime, it can rule that there is “no bill,” in which case the person is not charged with a crime.
A buffer between the courts and the people
England had a long tradition of requiring a group of citizens to formally accuse a person of a crime before a trial could begin. This group, known as a grand assize (uh-SEEZ) could identify suspects, present evidence, and determine whether to make an accusation. By taking the power to formally accuse someone out of the hands of the church and the nobles (aristocrats), the grand assize was originally created to give the government greater power. By the end of the seventeenth century, however, these grand juries were viewed as a protection against unfair government prosecutions because the practice put a group of citizens between the accused and the courts.
In America all the colonies had some type of grand jury system in place by 1683. And in the years leading up to the American Revolution, grand juries (made up of colonists) were often sympathetic to those who resisted British rule. For example, when groups of colonists in Boston angrily (and sometimes violently) protested the Stamp Act (a new British tax system) in 1765, a grand jury in Boston refused to indict the leaders of the protests.
With such events in mind at the time the Bill of Rights was written, the grand jury was viewed as an important protection against unjustified trials.
What can a grand jury hear?
Because it does not decide whether someone is guilty, a grand jury may hear evidence that is normally not admissible at a trial. For example, if a witness testifies about what someone else reported having seen, that testimony is called “hearsay.” Such second-hand evidence is not allowable in a trial, but it may be presented to a grand jury.
Frank Costello, a noted gangster in the 1940s and 1950s, was convicted of federal income tax evasion in the 1950s. Costello argued that his conviction should be overturned (thrown out) because the grand jury that indicted him had only heard hearsay evidence. In Costello v. United States (1956), however, the Supreme Court denied Costello’s request, noting that the Fifth Amendment does not say what kind of evidence a grand jury needs to hear in order to indict someone. But even when such evidence is heard by a grand jury, a prosecutor still cannot use hearsay in the actual trial.
Just a rubber stamp?
Some critics have argued that the grand jury is a mere tool of the prosecutor, “rubber stamping” (automatically agreeing with) the prosecutor’s wishes. Indeed, the procedures used in a grand jury investigation do seem to be stacked against the accused.
Not allowed to stick up for yourself.
A person named in the bill of indictment is not given a chance to present evidence in his or her defense to the grand jury. Nor is the accused allowed to cross-examine the witnesses called during the grand jury’s investigation. In United States v. Wong (1977), the Court even ruled that witnesses need not be warned that they have the right not to incriminate themselves (see “The Self-incrimination Clause” section).
The whole truth?
The prosecutor does not even have to present evidence that seems to help the accused. In United States v. Williams (1992), the Supreme Court examined what, if any, regulations a court can impose on a prosecutor in presenting evidence to a grand jury
Tulsa, Oklahoma, investor John Williams was indicted by a federal grand jury for giving false financial reports to a federally insured bank in order to obtain a loan. While some evidence showed that Williams did fill the reports out incorrectly, the prosecutor also had evidence showing that Williams probably did not know he had done so. Preparing false reports by mistake is a lesser crime than doing it on purpose. The prosecutor, however, did not show this evidence to the grand jury, and Williams was indicted for the greater crime.
Williams wanted the indictment dismissed because the prosecutor had not presented all the evidence. The Supreme Court, however, pointed out that nothing in the Constitution or the Fifth Amendment required a prosecutor to present such favorable evidence to a grand jury.
Critics of the grand jury system note a contradiction here. A grand jury is supposed to act as a shield against unjustified prosecutions, but it is only allowed to hear evidence against the accused.
Defending the grand jury system
Though it appears this arrangement treats the accused unfairly, defenders of the grand jury point out that the system allows citizens to participate in the charging process. Furthermore, it is important to remember that a grand jury’s main function is to make sure the prosecutor has a reasonable amount of evidence to begin a trial. Moreover, if a person is indicted by a grand jury, the accused person is given an opportunity to present his or her defense during the actual trial.
Grand juries in the states
The first ten amendments, collectively called the Bill of Rights, were originally intended to apply to the actions of the federal government, not to the individual states. But the ratification of the Fourteenth Amendment in 1868 and many Supreme Court decisions in the twentieth century extend many of these rights to the states. The right to a grand jury applies to all those charged with federal crimes. States have the choice whether to provide this right to defendants in state court. That is because the Fifth Amendment right to a grand jury is one of the few freedoms found in the Bill of Rights that has not been extended to the states via the Fourteenth Amendment’s due process clause, which additionally states: “nor shall any state deprive any person of life, liberty and property without due process of law.” Most of the rights in the Bill of Rights, such as the First Amendment’s free-speech clause or the Fourth Amendment prohibition against unreasonable searches, are found to be included within the word “liberty” of the due process clause. The grand jury freedom is a notable exception. In fact, all clauses in the Fifth Amendment have been applied to the states, except the grand jury clause.
One of the reasons the grand jury requirement has not been applied to the states is that the Court has found that states can provide the same protection against unfair trials by using other methods, such as pretrial hearings. In a pretrial hearing, a judge, rather than a grand jury, considers whether the government’s evidence justifies an indictment. Nonetheless, many states have some grand jury system in place. Most states, however, use the grand jury only for cases involving the most serious crimes, such as first-degree murder.
The Double Jeopardy Clause
Like the grand jury clause, the double jeopardy clause is intended to protect citizens from unfair prosecution. The clause prevents the government from repeatedly putting a person on trial for the same crime until the person is convicted. Madison’s first draft for the double jeopardy clause stated that “No person shall be subject to more than one punishment or one trial for the same offense.” This wording, however, seemed to prevent defendants from appealing their convictions. Under common law (English and U.S. legal tradition), people convicted of crimes have the right to seek such appeals.
To prevent confusion, the clause was changed to state that no person shall be “twice put in jeopardy of life or limb” for the same offense. (To be put in jeopardy is to be put in danger.) The double jeopardy clause thus prohibits the government from putting a person in danger of being punished more than once for the same crime. But it does not stop a person who has been found guilty of a crime (and is therefore still in jeopardy of life and limb) from seeking an appeal.
How does jeopardy double?
The double jeopardy clause seems simple enough. A person found innocent of a crime cannot be put on trial again for the same crime, nor can that person be punished twice for the same crime. Nonetheless, the clause leaves certain technical questions unanswered, leaving it to the Supreme Court to better define the clause elements.
When does jeopardy begin?
In Downum v. United States (1963), the Supreme Court defined when a person is first considered to be in jeopardy. This can be an important issue when deciding a double jeopardy case, because until a person is put in jeopardy, the protection against double jeopardy is meaningless. In Downum the Court ruled that in a trial with a jury (a group of citizens who determine a defendant’s guilt or innocence) jeopardy begins as soon as the jury is sworn in. In some criminal trials, however, there is no jury. Instead a judge decides the defendant’s guilt or innocence. In these trials jeopardy begins when the first witness is sworn in.
These rules mean that a person can be arrested and indicted by a grand jury without legally being in jeopardy, and as long as the charges are dropped before jeopardy begins, a person can be brought to trial later for the same crime.
When does jeopardy end?
It is also important to know when jeopardy officially ends. In certain situations a trial can end without taking a person out of jeopardy, in which case a second trial merely continues the original jeopardy. Here are some of the ways a trial may end:
- Acquittal: If a defendant is acquitted (found not guilty) in a trial, jeopardy ends. The person may not be tried for the crime again even if new evidence is discovered.
- Dismissal: A judge may dismiss (throw out) a case at any time during a trial for any number of reasons. The judge may decide, for example, that there is simply not enough evidence to justify a trial. If the case is dismissed after jeopardy has begun, the defendant cannot be tried again. However, if the judge dismisses the case before jeopardy starts (before the first witness or jury member has been sworn in) then the government can bring a defendant to trial again at a later date.
- Conviction and appeal: If a person is convicted (found guilty) in a trial, the double jeopardy clause does not prevent the defendant from appealing the conviction. However, the defendant is considered to be under the original jeopardy during the appeal process. If a higher court overturns (throws out) a conviction because there was not enough evidence in the original trial, then jeopardy ends and the defendant cannot be tried again.
However, if the conviction is overturned because a mistake was made during the original trial (such as allowing evidence that was obtained without a search warrant [see chapter four]) then original jeopardy continues. The higher court may then order a second trial in which the mistake is corrected without violating the Fifth Amendment.
When are the same actions not the same offense?
There are several situations in which a person can be brought to trial more than once for the same set of actions without violating the Fifth Amendment.
Civil and criminal trials.
The Fifth Amendment protection against double jeopardy only covers criminal cases. In a criminal case the government seeks to punish a person who has committed a crime. For example, putting a person in prison for assault (attacking someone) punishes the attacker.
Civil trials, by contrast, are held in order to compensate (pay) a person who has been hurt by someone else’s actions. The victim of the above assault, for instance, might bring a civil case against the attacker to cover his hospital costs after the attack.
Because the two kinds of trials serve different purposes, a person may be tried in a civil case and in a criminal case for the same actions, without violating the Fifth Amendment. Additionally, because the two trials are entirely separate, it is possible for the cases to have different outcomes.
A famous example of separate civil and criminal outcomes occurred in the mid-1990s, when former professional football star O. J. Simpson was charged with the double murder of his ex-wife and her friend. Based on the evidence at the criminal trial, a jury found Simpson not guilty, preventing the government from ever trying him again for those murders. However, the criminal trial did not prevent the victims’ families from bringing a civil complaint against Simpson. In the civil trial a jury decided that Simpson was responsible for the deaths and ordered him to compensate both victims’ families for their loss.
The United States has two major layers of sovereignty (government authority): the federal government and the individual state governments. Some criminal actions can break both federal and state laws. In such cases both governments may prosecute a defendant without violating the double jeopardy clause. The Supreme Court announced the so-called dual sovereignty doctrine (principle) in United States v. Lanza (1922). In that case the Court ruled that an action that violates the laws of two sovereigns (governments) constitutes a separate offense against each government. Therefore, a trial is allowed for each crime.
Despite these exceptions, the double jeopardy clause is an effective protection against repeated government prosecutions: in most cases, once a defendant is found innocent of a crime, the government cannot bring that person back to trial for that crime.
In Sattazhan v. Pennsylvania (2003), the Supreme Court ruled that a state did not violate the double jeopardy clause when it allowed a second jury to sentence a defendant to death after the defendant’s first jury had deadlocked (been unable to reach a verdict) after 31.5 hours of deliberation on the punishment phase. The first jury had found the defendant guilty but deadlocked in the punishment phase—determining whether the defendant should receive life imprisonment or death. An appellate court later reversed the underlying conviction, and the state retried the defendant. At his second trial, the jury found him guilty and sentenced him to death.
The Supreme Court found that this did not violate the double jeopardy clause. Justice Antonin Scalia wrote: “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’” Because the defendant had never been acquitted, there was no double-jeopardy circumstance.
The Self-incrimination Clause
The self-incrimination clause, which states that no person “shall be compelled in any criminal case to be a witness against himself,” is perhaps the most well-known element of the Fifth Amendment. The familiar scene in movies and on television in which police officers inform suspects of their “right to remain silent” is directly related to the legal history of the Fifth Amendment. When individuals “take the fifth,” they are refusing to provide information that might be used against them in a criminal prosecution.
The difficult beginnings of self-incrimination law
The purpose of the self-incrimination clause is to prohibit the government from compelling (forcing) a person to confess to a crime. The right against self-incrimination became part of English law with the trial of John Lilburne in 1637. Lilburne was brought to trial in England for smuggling banned religious booklets into England. During his trial, he refused to take an oath requiring him to answer truthfully any question asked of him. Lilburne claimed the court wanted to trap him and argued that the “law of God and the law of the land” supported his right against self-accusation. Lilburne was whipped and punished in public for refusing to take the oath. But public outcry led Parliament (the British government’s law-making body) to declare Lilburne’s punishment illegal, and the government eventually recognized a person’s right against self-incrimination.
Lilburne was a member of the Puritan religious movement, as were many of the original American colonists in Massachusetts. Nonetheless, the Massachusetts Puritans set up rules of conduct for Puritan colonists that permitted the use of torture to force defendants to confess to crimes. Other colonies also allowed force to be used when interrogating (questioning) defendants. This practice reflected the common idea at the time that an accused person was guilty until proven innocent. Defendants were required to provide evidence of their innocence and had no right to remain silent before they did so.
By the time the states were deciding whether to ratify the Constitution, however, popular opposition to the use of torture led a number of states to include the privilege against self-incrimination in their state constitutions. Thus a number of the states asked Congress to include the same protection in the Bill of Rights, leading Madison to include the clause in the Fifth Amendment.
Under the self-incrimination clause the defendant is assumed to be innocent until proven guilty. Therefore, the trial process is reversed. It is up to the government to prove a person is guilty of a crime, and the defendant has no responsibility to help the government do this.
Protecting the innocent and the guilty
People sometimes assume a person who chooses to remain silent must be guilty. However, an innocent person may also exercise the right not to testify against him or herself. When an accused person chooses to remain silent, the prosecutor is not allowed to suggest that the defendant’s silence means the person is guilty. Moreover, before the jurors begin to make their decision, the judge must tell them that the defendant’s silence cannot be considered evidence of guilt.
Interrogations and forced confessions
The most common issue surrounding self-incrimination is how far police may go in questioning a suspect they have in custody. The Supreme Court first addressed this issue in 1897, in Bram v. United States, in which it decided that a forced confession violates the self-incrimination clause. But deciding when a defendant has been forced to confess can be complicated.
The voluntariness test.
In Brown v. Mississippi (1936), the Court established the voluntariness test for deciding when a confession could and could not be used in a trial. In the case, police had obtained confessions by brutally beating the suspects. The Supreme Court emphasized that a confession could not be used if circumstances suggested there was a good chance it was false.
The voluntariness test caused problems, though. In order to decide whether a confession had been made voluntarily (willingly and without force) a court had to decide whether there had been any physical abuse or threats, whether there had been excessive questioning, or if the defendant had been denied the right to consult with a lawyer. The court also needed to determine if a defendant was capable of knowing his or her rights before making a confession. A person with a mental illness or with very little education, for example, may not be aware of his or her rights. But these facts were often open to interpretation, which made using the voluntariness test difficult in many cases.
In Ashcraft v. Tennessee (1944), for instance, the Court threw out a murder conviction because the defendant’s confession came after thirty-six straight hours of police interrogation. The court called the lengthy period of questioning “inherently coercive.” (In other words, because the police had kept questioning the person for such a long time, the police had, in effect, forced the confession.) A month later in Lyons v. Oklahoma, however, the Court ruled that a defendant’s confession had been voluntary, even though the police forced the defendant to sit for twelve hours with the bones of murder victims sitting in a pan on his lap.
The right to an attorney.
In Escobedo v. Illinois (1964), the Supreme Court broke away from the voluntariness test. In the case, police obtained a confession after refusing the defendant’s repeated requests to consult with his attorney. The Court ruled that once a suspect has been taken into custody “if the suspect has requested and been denied an opportunity to consult with his lawyer and the police have not effectively warned him of his absolute constitutional right to remain silent” then nothing the defendant said to the police, voluntarily or not, can be used against him in a trial.
The Miranda warning.
Escobedo made it clear that police departments had to ensure that the self-incrimination clause amounted to more than words on paper. But in 1966 the Supreme Court went a step further.
Ernesto Miranda was arrested in 1963 and taken to the police station where witnesses identified him as a rapist. Police then interrogated Miranda without telling him he had the right to an attorney. Miranda confessed and was later convicted of rape and kidnapping. However, in Miranda v. Arizona (1966), he appealed his conviction to the Supreme Court, arguing that he had never been advised of his legal rights.
In looking at the case, the Court noted that most police did not use methods such as beating suspects or denying them their rights. Nonetheless, the Court said, such methods were common enough to merit widespread concern. As a result, the Court established certain procedures that police departments are required to follow when taking a person into custody.
These procedures, known as Miranda warnings, entail informing a person being interrogated of the person’s rights, including the following:
- The right to remain silent
- The right to invoke Fifth Amendment protection against self-incrimination at anytime during an interrogation
- The right to have a lawyer present during interrogation
- The right to have an attorney appointed if the arrested person cannot afford one
- The fact that anything the person says can and will be used against him or her in court
The Court ruled that statements made by a suspect who was in police custody would not be admissible in a trial unless the suspect had been fully informed of his or her rights and had then voluntarily waived (given up) those rights. Since 1966 the Miranda warning has become a routine part of police work.
At first, many people feared that the Miranda warnings would interfere with police work. The Court pointed out, however, that interrogations were still a perfectly legitimate tool, as long as a person knew his or her rights and was allowed to exercise them. Reading the Miranda warnings has also kept defendants from later trying to take back their confessions, since after the warning has been given, anything a suspect says can be used in court. (see “Limits to the Self-incrimination Clause” box.)
The Due Process Clause
The due process clause in the Fifth Amendment states that no person shall be “deprived of life, liberty, or property, without due process of law.” Established under English common law (legal tradition), due process requires government legal proceedings to be fair. The clause has two major categories: procedural due process and substantive due process.
Procedural due process limits the actions the government can take to enforce its laws. The government may not start legal proceedings against someone without first notifying that person. Furthermore, the government must provide an opportunity for the person to speak on his or her own behalf before it can hand out any punishment. Under procedural due process, a person must be informed when he or she is being put on trial and must also be given a chance to testify during the trial.
Substantive due process prohibits the creation of laws that unreasonably restrict a person’s substantive (essential) rights. This type of due process prevents laws from being made that take away individuals’ rights; for instance, a law that took away a person’s right to free speech (see chapter one) would not be allowed.
There are two due process clauses in the Constitution. The Fifth Amendment clause was created to limit the actions of the federal government. There is also a due process clause in the Fourteenth Amendment (see chapter fourteen) that applies to state and local governments. Since the late 1800s most due process cases heard by the Supreme Court have centered on the Fourteenth Amendment. However, the clauses in both amendments have had a close legal relationship in the courts.
Making government follow the rules
The Supreme Court first looked closely at procedural due process in Murray’s Lessee v. Hoboken Land and Improvement Co. (1856). In that case the Court set up standards for judging whether particular government actions followed due process.
At issue in the case was the government’s method of collecting debts from citizens who owed the government money. The Court used two principles to decide whether the government’s process for debt collection was following due process. First, the court said that the process must not conflict with any terms set out in the Constitution. (For instance, did the process take away the debtor’s right to free speech?) Second, the process must not conflict with English common law, which the Court viewed as directly connected to American legal tradition.
In the Murray’s Lessee case, the Court found that the English government had historically used the same methods for collecting debts in England as the American government was now using; therefore, the procedure followed due process. However, in Hurtado v. California (1884), the Supreme Court ruled that if due process of law was limited to include only traditional procedures, then the legal system would be “incapable of progress or improvement.” Instead, the Court ruled that any legal proceeding that preserves the “principles of liberty and justice, must be held to be a due process of law” regardless of whether it was new or old.
Substantive due process
The first major cases to involve the issue of substantive due process concerned the Fourteenth Amendment’s due process clause, which relates to the actions of state governments. In the 1897 case of Allgeyer v. Louisiana, the Court found that a Louisiana law that limited the types of contracts people could enter into with out-of-state insurance firms was unconstitutional because it deprived people of their right to enter into lawful contracts.
Later, in Lochner v. New York (1905), the Supreme Court ruled that a New York law that limited the number of hours bakers could work (for health reasons) violated the workers’ freedom to make legal contracts (see chapter fourteen).
Both of these cases used the Fourteenth Amendment’s due process clause to strike down state laws. In Adair v. United States (1908), however, the Court used the Fifth Amendment’s due process clause to strike down a federal law against “yellow dog” contracts. These contracts required workers to promise never to join a union. (A union is a group of workers who come together to bargain or negotiate the terms of their employment with an employer.) At the time such yellow dog contracts were commonly used to prevent unions from forming.
The Supreme Court struck down the anti-yellow dog law, as well as a law that set a minimum wage for female workers in the District of Columbia. In both cases the Court ruled that employers and employees have a substantive right to negotiate whatever terms they please and that the government cannot intrude on these rights without violating the Fifth Amendment’s due process clause.
During the Great Depression (a period of severe economic hardship that lasted from the stock market crash of 1929 through the end of the 1930s), however, the Court abandoned its opposition to all government regulation of business. In the case of West Coast Hotel Co. v. Parrish (1937), the Court allowed a law to remain in effect that required employers to pay a minimum wage to their workers. In that case the Court stated that society requires protection “against the evils which menace the health, safety, morals, and welfare of the people.” Therefore, when government regulation is reasonable and furthers the interests of society as a whole, it can be said to follow due process.
The Court has used the concept of substantive due process to strike down any number of state and federal laws that unreasonably deprive people of their constitutional rights. For example, the Court has established that there is a substantive right to privacy derived from the First, Fourth, and Ninth Amendments (see chapters one, four, and nine). In Griswold v. State of Connecticut (1965), the Court struck down a state law that prohibited the use of contraception (birth control), even by married couples. Using a substantive due process test, the Court ruled that the law unreasonably limited people’s right to privacy.
Adding equal protection to the Fifth Amendment
In addition to its due process clause, the Fourteenth Amendment includes a so-called equal protection clause that says that state governments may not “deny to any person the equal protection of the laws.” Taken together, these two clauses mean that due process requires the government to treat everyone equally under the law.
The Fifth Amendment does not include such an equal protection clause. But in the school desegregation case of Bolling v. Sharpe (1954), the Supreme Court concluded that the due process clause contained in the Fourteenth Amendment (which only applied to states) was a better protection against unfairness than the Fifth Amendment’s due process clause (which applied to the federal government). With this is mind, the Court said that it would be “unthinkable” for the Constitution to require more from the states than it required of the federal government. Thus, the Court ruled that guaranteeing “equal protection under the law” is, in fact, part of due process, and therefore is part of the Fifth Amendment’s due process clause.
Since Bolling the Supreme Court has used the equal protection reading of the Fifth Amendment to strike down a number of federal laws, such as those that discriminate on the basis of a person’s gender (sex).
The Eminent Domain Clause
The eminent domain clause states that private property shall not “be taken for public use, without just compensation.” In effect this clause establishes the government’s right to take a person’s property for public use, such as for building a road or a school, while requiring the government to pay owners a fair price for the “taken” property.
Before the American Revolutionary War, it was customary for the colonial governments to take private property for public use without paying the owner anything. Usually, the government seized undeveloped land for the purpose of building roads and developing the frontier (unsettled land).
After the Revolution began, American forces often seized property (especially from colonists who were loyal to Great Britain) for military use, often without making any compensation to the owner. In both cases giving up private property for the common good was seen as part of the public duty of every colonist.
Many people, though, were upset by these practices and felt that individual property rights should not always be sacrificed for the good of society. Thus the eminent domain clause was crafted to balance the public’s interests with individual owners’ property rights.
A constitutional first
The clauses in the Fifth Amendment were originally designed to apply only to the federal government, which meant state governments had the right to take private property without paying the owner. However, the passage of the Fourteenth Amendment in 1868 changed that decision. The first section of the Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge [lessen] the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” (see chapter fourteen). This statement means that state governments can not make laws that take away rights that are given to them by the federal government.
In Chicago, Burlington, and Quincy Railroads v. Chicago (1897) , the Court ruled that this section of the Fourteenth Amendment requires state governments to make fair payments for any property they take, just as the federal government is required to do. This ruling marks the first time that the Supreme Court used the Fourteenth Amendment to expand the reach of the Bill of Rights to state governments.
Defining the terms of eminent domain
The eminent domain clause does not define what types of “public use” justify a taking of private property, nor does the clause specify how to determine what “just compensation” (a fair price) is.
To determine whether property can be taken, the courts must first decide whether use of the property will benefit the public. The definition of public use has broadened over the years to include such projects as trade centers, municipal civic centers, and airport expansions. The Supreme Court has even declared that improving the physical appearance of an area constitutes a legitimate public use. In Berman v. Parker (1954), for instance, the justices ruled that slums could be cleared to make the city more attractive.
There is no set formula for determining the fair price for taken property. Compensation (payment) is generally set at the price an owner could reasonably expect to get from a person who wished to buy the property for private use. However, the amount paid should be based on the owner’s loss, not the government’s gain. For example, if an owner could expect to receive $20,000 from a private buyer, this sum will determine the amount paid for the property, even if the government plans to build a civic center on the property that will generate millions of dollars in business.
When regulation becomes taking
The government often passes laws that regulate (control) the way property owners can use their land in order to serve public interests such as protecting the environment. Usually these regulations are not considered a taking of property. However, in some cases a regulation reduces the value of the property so severely that the government may pay the owner some compensation.
The Supreme Court first examined this issue in Pennsylvania Coal Co. v. Mahon (1922), when it ruled that a Pennsylvania law that prevented coal mining on certain types of property hurt the coal company that had rights to mine the land. The Court decided that the statute constituted a taking and that the state must pay the coal company just compensation. The Court ruled that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”
The Supreme Court confronted a similar issue in Lucas v. South Carolina Coastal Council (1992). In 1986 David Lucas purchased two residential lots near the beach in South Carolina. Lucas paid $975,000 for the lots, on which he planned to build two single-family homes. When Lucas bought the property, the South Carolina government did require that he get special permission to build homes on the land. But in 1988 South Carolina enacted a law that prohibited building new houses too close to the beachfront. The law was intended to fight the problem of beach erosion (beaches were washing away due to over development). Because of the law Lucas was not allowed to build houses on his property.
The U.S. Supreme Court ruled that the right to erect a house is an “essential use of the land” that comes with the purchase of the property. In its ruling the Court stated that if Lucas reasonably could have expected to build on his property before the law was passed, then the law effectively took away his property rights, and South Carolina would have to pay compensation.
In 2005, the Supreme Court issued a controversial eminent domain decision in Kelo v. City of New London. The city of New London, Connecticut, instituted its power of eminent domain to take property away from nine landowners to transfer the property to a private corporation as part of an economic development and revitalization plan. Thus, the city took private property from one owner and gave it to another private property owner. The nine landowners sued, contending that the city exceeded its eminent domain powers.
However, the majority determined that the city’s decision to take the property for the purpose of economic development satisfied the public use requirement of the Fifth Amendment.
Many people were outraged at the Court’s decision. Several members of Congress sponsored or co-sponsored the Private Property Rights Protection Act to restore Fifth Amendment protection. The bill refers to the Court’s decision in Kelo as “a stark departure from the honor and recognition given individual private property rights under the United States Constitution.”
Summing Up the Parts of the Fifth Amendment
Taken together, the five clauses of the Fifth help define a person’s rights when engaged in direct legal proceedings against the government. Each of the Fifth Amendment’s clauses provides a specific type of protection against government abuses of the legal system. Individuals had claimed these rights in England and America before, but in both places the government often ignored them. As part of the Bill of Rights, the Fifth Amendment firmly established these protections within the legal fabric of the United States.
For More Information
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Wright, Robert R. Land Use in a Nutshell. St. Paul, MN: West Publishing, 1994.