Monday, April 16, 2012

the Fifth Amendment: Bet you only know one part

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

-the Fifth Amendment

Ok so the first part of this is actually easy to skip through though is very important.  You can not be held for a Capitol crime unless the Grand Jury indites you.  Now this part isn't used so much anymore because let's face it there aren't that many crimes we're punishing with death anymore.  Still it is meant as a safeguard to prevent you from having your life taken by the State.  A Judge alone can not assign you the death penalty.  The "otherwise infamous" crime is a bit vague, and I tend to mean that if there is a crime where life is lost or the depravity of the act is shocking to the conscious then there has to be a grand jury. 

Also its kind of important to note, the Military is singled out as not having this protection.  SSG Bales, the recent alleged Afghanistan shooter can be held, and if needs be executed for the crimes he committed without a grand jury.  Apparently the Founders were aware of a fact that has escaped the Modern Liberal.  Namely the Rules and Laws of War are different than those applied to civilians.  Peace and War are as different as night and day, and any actions in War have to be viewed through that understanding.  The "Public Danger" could well be any call up for the National Guard for disaster relief, or any number of occasions that may require the Military to deploy.  Keep in mind that this is before the UCMJ. 

The next part deals with "Double Jeopardy".  I'm not sure what crime you have to commit in America where Limbs are taken, but if there were any, if you were tried for a crime once, you can not be tried for the same crime against the same person twice.  Now if you have say a serial rapist who rapped a woman repeatedly, you can try him for each act.  In essence each time he violated that woman.  That's why when the charges are being read you hear "(blank) counts of. . . "  In practical terms it usually is a compounding of the sentence, but most of the time if a criminal is a repeat offender in multiple counties or states then if acquitted in one state or county then they will often be shipped off to another State or county to face trial there.  If you committed one crime which is hard to do these days because all crimes seem to be inter linked, then if you were acquitted its like it never happened at least on your record. 

The next part is the one everyone knows.  "I plead the fifth."  How many times have you seen someone pulled before Congress about some wrong doing that has really pissed someone off and they just keep pleading the Fifth.  Well suck it up.  The State can not force you to say anything in a criminal matter.  Now keep in mind, this protection is not  afforded to you when in a civil case.  If compelled you have to testify.  While annoying, the reasons for this clause should be painfully clear.  Again this does not cover anything to do with War time.  I believe the ICC in the Hague doesn't even allow criminals to abstain when dealing with War Crimes.

The last clause seems like its tacked on, but its actually really important in current times.  See there's this thing called eminent domain.  Essentially its the idea that the Government can come in and take your land if needed for "public good".  What is good for the public is actually really vauge and has actually been abused lots of times.  In Hawaii for instance you can not own any beach front property.  Its' quite clear that the State can come in at any time evict you and build whatever they want there (how do you think Waikiki got build?) They do have to compensate you with "fair" prices.  The problem here is that what exactly is fair?  Value as Heinlein put it is not absolute.   A bowl of cherries may cost X, but in the hands of a master chef they can cost significantly more.  Conversely in the hands of a dumbass they can be next to worthless.  If a three bedroom house has been in my family three generations I might value it a hell of a lot.  The State may say that the land is only worth so much and the two figures never  match up, usually falling in the State's favor.  My advise is if the State even tries Eminent Domain on you, make damn sure you get every penny out of them.  It should not be something they can do lightly. 

My take on the 5th amendment is that people are dumbasses.  They know all of one clause of the whole thing.  Arguably the one they might actually use, but if you do not know what the State can and perhaps more importantly CAN NOT  do, they you will be caught unawares.  It will also lead to abuses of power.  In the end it is you the individual and the Citizen that is the watchdog.  You are the guardian of the freedoms you have, not the State. 

1 comment:

Anonymous said...

Arrived here while researching the meaning of "public danger". I prefer the original intent of the phrase you provided.
UCMJ? My next read! Can't wait to see how "public danger" has been redefined for our current time!

Thanks for the information!