Issue 17.15
“No person… shall be deprived of life, liberty or property, without due process of law.” This is another key phrase in the Fifth Amendment which protects the normal law-abiding citizen against immoral activity by government or its representatives and law enforcement personnel. The concept hearkens back to the principles set forth in the Declaration of Independence. The concept that basic rights are unalienable or God given also presumes that government has no right to reduce or take away those rights unless compelled to do so by the actions of the individual. Those actions usually must include infringing on the rights of someone else.
When a person chooses to do something that damages another person, kills them, takes their property illegally or threatens their safety or livelihood, the government then has a moral and legal responsibility to stop the perpetrator from doing additional harm and punishing them as a deterrent to others. Thus, in these cases, the government is justified in violating the otherwise “unalienable” rights of life, liberty, control of personal property or the pursuit of happiness. This Amendment continues the balancing act of weighing the rights of the injured against the possibility of abuse of power by state officials which could result in convicting the wrong person and furthering the injustice. It requires in the case of extreme or capital crimes (those that could possibly result in a death sentence for the accused) that no arrest be made without an indictment by a Grand Jury. The only exception to this is when a serious crime is suspected within the military or militia in time of war or public danger.
A Grand Jury is a group of private citizens to which is presented evidence of serious crimes. If, in their judgement, sufficient evidence exists to bring the person suspected to trial, the warrants can be issued, the person detained and questioned and evidence collected to try to prove them guilty. This must be done in keeping with the protections mentioned in the last article, particularly being given the “Miranda” rights warning so they understand that they do not have to confess or incriminate themselves. The burden of proof is on the government. A Grand Jury indictment is not required for a case to go to trial and arrests to be made, but it makes the arrest and trial more likely as judges are less likely to allow prosecution of serious crimes unless they are convinced the evidence will produce a conviction. Some states do not usually use Grand Juries or only use them in unusual situations, most often those which do not have the death penalty as a possible outcome.
Other protections of accused people that this Amendment addresses include the restriction that, once a person has been tried and found innocent, they cannot be tried again for the same crime, even if additional evidence is found. They may be tried for an associated or different crime arising from the same incident, but not on the same charges for that incident. Also included is the principle that their property cannot be taken for public use without just compensation.
Governmental entities have sought to take away private property for various purposes, including the construction of railroads, highways and public buildings. When these processes are necessary to the ordered progress of the population, such as when a new highway is needed to safely handle the traffic flow in a city, the city or state can claim private property in order to build the highway. This process is called eminent domain. The Fifth Amendment cautions that this should not be done frivolously and that a fair price must be paid the owner. This has been further interpreted to mean that the fair price must be based on what it would be worth if the project involved had not been created. This protects the owner from having the property devalued because no one wants to live twenty feet from the train track they intend to build. This amendment is more evidence of the character and foresight of the framers of the Constitution. They were wise indeed.
Lynn West is a thinker, a teacher and a patriot. You can reach him through email at forgingthefuture2021@gmail.com or through this newspaper. Liberty is a state of being which must be continually created. These articles can help all of us discover the ways we can contribute to that outcome.