The Fifth Amendment

December 11, 1991

Among other things, the Fifth Amendment says no person can be compelled to "to be a witness against himself." Older Americans still think of it as the amendment disreputable characters invoked when being questioned by congressional committees. "Fifth Amendment Communist" was a cliche in the early years of the Cold War, when such investigators as Sen. Joseph McCarthy and Rep. Richard Nixon were engaged in what were called "witch hunts." The innuendo was that anyone refusing to answer incriminating questions about his or her politics or past associations was guilty of crimes against the nation.

More recently the amendment became associated in some minds with judges freeing convicted dangerous felons -- robbers, rapists, murderers -- because police had coerced them to confess. The Supreme Court eventually required police to inform all suspects, in advance of questioning, that they "have the right to remain silent."

The amendment definitely has had an image problem. Too bad, because the Fifth Amendment is the "cornerstone" of the Bill of Rights, says no less a figure than Richard Nixon's law-and-order Chief Justice, Warren Burger. He and other conservative jurists, like the Framers of the Bill of Rights, wanted no part of the secret and oppressive Star Chamber trials and the literal witch hunts of pre-Revolution days.

The Fifth Amendment also requires a grand jury composed of private citizens to approve of serious charges before there can be an indictment and trial. It also forbids "double jeopardy" -- the government cannot try you, lose, then try you again on the same charge. It also prevents the government from taking private property for public use without paying the owner a "just" price. Most important of all, the amendment requires the government to follow "due process of the law" in all actions against a person. Originally intended only to keep the administration of justice beyond the reach of legislatures, "due process" soon came to be a protection for the individual against all arbitrary and capricious acts by all entities of government.

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