A Clearer Bill of Rights: Amendment V

“How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!” -Samuel Adams

When it comes to big government, progressive Statism, words are merely a nuisance that obstruct the growth of government power. When those words have meanings that seek to limit the scheming of Statists abroad, how often do we see them ignore the planing meaning of those words? The Constitution is the penultimate definition of a restraining order on tyranny, but Statists have no problem twisting its words to mean things that no rational person could ever imagine.

Now let’s give at least one caveat here. Some of the language of the Constitution can be a bit confusing. The document was written over 225 years ago, so there are more than a few differences in writings style and word choices. However, these nuances do not nullify the meaning of those words. It simply means that we have to look at the words, and their background, more carefully than Statists would approve.

Unfortunately, 21st century America does not have much more of an attention span than a squirrel; so looking at the words for more than a few seconds does not appear to be an option. What a shame this is; if only we had the ability to read carefully, and think even more carefully, it might not be so difficult to understand what the Constitution is actually saying.

In light of this, I’m going to clarify one of the most important aspects of the Constitution: the Bill of Rights. I will include the original language of each amendment, and below I will give a modern translation that can be clearly understood, leaving no room for Statist misinterpretations.

Amendment V- 1791

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 offense 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.

Amendment V- 2015

No person shall be held to answer for any crime unless upon indictment by a grand jury, except in cases arising in the land or naval forces, or in the militias, when in actual service of the armed forces; nor shall any person be twice put in jeopardy of life, liberty or property; nor shall anyone be compelled in any case to be a witness against himself, nor be deprived of life, liberty, or property, without the prescribed procedures of this Amendment; and only upon actual conviction in a trial by jury shall anyone be deprived of life, liberty, or property; and no private property shall be forcibly taken for public use.

The Fifth Amendment acts as a complementary criminal protection in addition to the Fourth Amendment. The latter protects one against unreasonable searches of one’s property and effects, while the former protects one against abuse in the criminal justice system. There’s a reason why the saying “I plead the Fifth” is so often used. It is such an integral part of our Constitution that we cannot imagine life without it. And it is because of this very fact that it must be both clarified and expounded upon.

There are two specific protections in the Fifth Amendment that have been ravaged by the various levels of government: civil asset seizure, and eminent domain. So let’s delve into these two concepts.

Civil asset seizure (or legal plunder) is one of the greatest abuses of police power in the 21st century. Far too many a time, police forces have taken a person’s belongings on the arbitrary suspicion that there was criminal activity. No arrest, no indictment, no conviction. Just a straight legal theft of one’s property by arbitrary reasoning. Such a practice has been fittingly dubbed “Policing for Profit,” as many departments keep what they steal. In many cases, state laws are written in such a way that actually encourage such a practice instead of defining the proper role of the criminal justice arbiters.

The Institute for Justice has an excellent outline of just how much of an issue Policing for Profit has become.

Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime.  Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head.  With civil forfeiture, your property is guilty until you prove it innocent.

Their report on Policing for Profit is available in .pdf format here, in case you are interested in further reading.

In September of 2014, Tim Wahlberg, Congressman from Michigan 07, wrote an op-ed piece in the Washington Post bringing awareness to the issue. In the piece, he told a story of a man who was pulled over for speeding, and when it was all said and done, the police had taken $8,500 from him without any arrest, indictment, or conviction. In the case of this man, he was able to get his property back, but often times this is not the case. Just as written by the Institute for Justice, in civil asset seizure cases, your property is guilty until proven innocent. This is a blight upon our criminal justice system, and a blatant violation of the Fifth Amendment.

By providing a provision requiring that one be indicted and convicted of a criminal offense before property is forcibly taken, this constitutionally prevents law enforcement agencies from developing policies which center around the concept of Policing for Profit. Just because one has thousands of dollars on their person does not mean that they are a criminal. It is as simple as that. The simple possession of large amounts of cash does not constitute probable cause in any rational person’s mind (unless you are in the police department). Simply stated, this legal plunder must be brought to an end. A clearer constitutional provision for such would better protect our right of property.

Similarly, another aspect of the Fifth Amendment has been pillaged and left to die by both state and federal levels of government; that is the use of eminent domain. Under the Fifth Amendment as it stands, no one’s property can be taken without just compensation. This leaves quite a vacuum, because there are not specific parameters for such a process that are outlined. However, even if they could be outlined in a clear and concise way, such still should not be done.

CBS News recently asked if eminent domain powers were being abused on their 60 Minutes program.

[D]id you know the government can also seize your land for private use if they can prove that doing it will serve what’s called “the public good”?

Cities across the country have been using eminent domain to force people off their land, so private developers can build more expensive homes and offices that will pay more in property taxes than the buildings they’re replacing.

Under eminent domain, the government buys your property, paying you what’s determined to be fair market value.

Under eminent domain, one’s claim to the land is irrelevant. Whatever the government deems to be “the public good” now constitutes sufficient reason to evict you from your property. This is an egregious policy that would have the Founders livid. An integral part of the Fifth Amendment is the protection of property rights. Eminent domain effectively bypasses those protections in the name of the collective good.

The solution is not to provide parameters for public use of private property; the solution is to prevent its existence. No one should be forced off of their property simply because the government believes it to be not in the public’s interest. A shopping mall does not constitute enough of a compelling interest to rip a family from their domicile, and to knock their home to the ground in a symbolic sacrifice to the cult of consumerism. The family domicile trumps the consumerist lust, period.

This concludes part five of the Clearer Bill of Rights series. Next, we shall look at the Sixth Amendment, and its protections for the accused in criminal procedure.

Follow Seth on Twitter: @sconnell1776


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