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Twenty-fifth Amendment to the United States Constitution …

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities. It supersedes the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which does not expressly state whether the Vice President becomes the President or Acting President if the President dies, resigns, is removed from office, or is otherwise unable to discharge the powers of the presidency.[1] The Twenty-fifth Amendment was adopted on February 10, 1967.[2]

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.[3]

Article II, Section 1, Clause 6 of the Constitution states:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

That clause was unclear regarding Presidential succession and inability; it did not state who had the power to declare a President incapacitated.[1] Also, it did not provide a mechanism for filling a Vice Presidential vacancy before the next Presidential election.

The prospect of presidential disability was not given much attention by the Framers in part because it was thought that the President’s responsibilities would be very limited most of the time. Furthermore, in an era of eighteenth century communications technology and diplomacy, it was expected that important decisions could be made on timescales measured in weeks if not months. Moreover, throughout history up to when Constitution was drafted in the late eighteenth century, people who suffered medical trauma or distress serious enough to render them incapacitated usually either died or recovered relatively quickly. It therefore seemed reasonable to assume that short-term medical issues would not likely cause a seriously impediment to a President’s ability to carry out his office’s expected duties.[citation needed]

Despite these considerations, the vagueness of the original clause caused difficulties many times before the Twenty-fifth Amendment’s adoption:

All of these incidents made it evident that clearer guidelines were needed.[1] There were two proposals for providing those guidelines.

In 1963, Senator Kenneth Keating of New York proposed a Constitutional amendment which would have enabled Congress to enact legislation providing for how to determine when a President is unable to discharge the powers and duties of the presidency, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.[11] This proposal was based upon a recommendation of the American Bar Association in 1960.[12]

The text of the proposal read:[13]

In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

Senators raised concerns that the Congress could either abuse such authority[14] or neglect to enact any such legislation after the adoption of this proposal.[15] Tennessee Senator Estes Kefauver, the Chairman of the Senate Judiciary Committee’s Subcommittee on Constitutional Amendments, a long-time advocate for addressing the disability question, spearheaded the effort until he died of a heart attack on August 10, 1963.[16][17] Senator Keating was defeated in the 1964 election, but Senator Roman Hruska of Nebraska took up Keating’s cause as a new member of the Subcommittee on Constitutional Amendments.[10]

By the 1960s, medical science had advanced to the point that unlike in the eighteenth century it was increasingly frequent for people (especially those with access to the best medical care) to suffer long-term disability or incapacitaty after medical trauma or distress. Of course this did not happen after John F. Kennedy was fatally shot, but that episode clearly demonstrated the need for a clear way for determining presidential disability in the context of the Cold War.[18] The new President, Lyndon B. Johnson, had once suffered a heart attack[19] and with the office of Vice President to remain vacant until the next term began on January 20, 1965 the next two people in the line of succession were the 71-year-old Speaker of the House John McCormack[18][20] and the 86-year-old Senate President pro tempore Carl Hayden.[18][20] Senator Birch Bayh succeeded Kefauver as Chairman of the Subcommittee on Constitutional Amendments and set about advocating for a detailed amendment dealing with presidential disability.[18]

On January 6, 1965, Senator Birch Bayh proposed S. J. Res. 1 in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed H. J. Res. 1 in the House of Representatives. Their proposal specified the process by which a President could be declared “unable to discharge the powers and duties of his office”, thereby making the Vice President an Acting President, and how the President could regain the powers of his office. Also, their proposal provided a way to fill a vacancy in the office of Vice President before the next presidential election. This was as opposed to the KeatingKefauver proposal, which neither provided for filling a vacancy in the office of Vice President prior to the next presidential election nor provided a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated.[21] On January 28, 1965, President Johnson endorsed S. J. Res. 1 in a statement to Congress.[10] Their proposal received bipartisan support.[22]

On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April 13. On April 22, it was returned to the Senate with revisions.[10] There were four areas of disagreement between the House and Senate versions:

On July 6, after a conference committee ironed out differences between the versions,[23] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.[24]

The Congress proposed the Twenty-fifth Amendment on July 6, 1965, and the amendment was ratified by the following states:[2]

The following states have not ratified the amendment:

Six days after its submission, Nebraska and Wisconsin were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify, respectively. On February 23, 1967, in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified the amendment’s adoption.

Section 1 codified the “Tyler Precedent” regarding when a President is removed from office, dies, or resigns. In any of these situations, the Vice President immediately becomes President.

Prior to the Twenty-fifth Amendment’s adoption, a Vice Presidential vacancy remained until the next vice-presidential term began. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for several years.

Under Section 2, whenever there is a vacancy in the office of Vice President, the President nominates a successor who becomes Vice President if confirmed by a majority vote of both Houses of the Congress.

Section 3 provides that when the President transmits a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, stating that he is unable to discharge the powers and duties of the Presidency, and until the President sends another written declaration to the aforementioned officers declaring himself able to resume discharging those powers and duties, the Vice President discharges those powers and duties as Acting President. The Vice President does not become President and the sitting President is not removed from office.

Section 4 addresses the situation where an incapacitated President is unable or unwilling to provide the written declaration called for by Section 3. It allows the Vice President, together with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide”, to declare the President “unable to discharge the powers and duties of his office” by submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. As with Section 3, the Vice President would become Acting President, not President, and the sitting President would not be removed from office. Unlike Section 3, Section 4 says that when invoked the Vice President “immediately” becomes Acting President. Section 4 is the only part of the amendment that has never been invoked.[26]

A President who is declared unable to serve under Section 4 may thereafter send a written declaration of ability to serve to the President pro tempore and the Speaker of the House. If the Acting President and a majority of the Cabinet still believe the President is incapacitated, they have four days to send a second declaration to that effect to the President pro tempore of the Senate and the Speaker of the House of Representatives. If not already in session, the Congress must then assemble within 48 hours to decide the issue. If within 21 days two-thirds of each house of Congress vote that the President is incapacitated, the Vice President would “continue” to be Acting President. Should the Congress resolve the issue in favor of the President, or make no decision within the 21 days allotted, then the President would “resume” office. The use of the words “continue” and “resume” imply that the Vice President remains Acting President pending action by the Cabinet and Congress, and the legislative history of Section 4 makes it clear that its drafters meant for the Vice President to do so.[27] Otherwise, the President could simply retake power and immediately fire Cabinet members who voted to declare the President unfit, preventing the dispute from ever reaching Congress as the drafters intended.

Nothing in Section 4 limits the number of times a President may initiate the process to resume office by sending a written declaration to Congress.

On April 14, 2017, Representatives Jamie Raskin and Earl Blumenauer introduced the Oversight Commission on Presidential Capacity Act.[28] The bill would replace the Cabinet as the body that, together with the Vice President, determines whether Section 4 should be invoked. Under the bill, an eleven-member commission would conduct an examination of the President when directed to do so by a concurrent resolution of the Congress.[29]

According to Blumenauer:

It is hard to imagine a better group to work with the vice president to examine whether the president is able to discharge the duties of the office. When there are questions about the presidents ability to fulfill his or her constitutional responsibilities, it is in the countrys best interest to have a mechanism in place that works effectively.[29]

The Twenty-fifth Amendment has been invoked six times since its ratification. The first three times were applications of Sections 1 and 2 in the context of scandals surrounding the Nixon Administration. The latter three were applications of Section 3 regarding Presidents undergoing a medical procedure requiring general anesthesia.

President Richard Nixon resigned on August 9, 1974, resulting in Vice President Gerald Ford succeeding to the office of President.[30] Gerald Ford is the only person ever to be Vice President, and later President, without being elected to either office.[31]

On October 12, 1973, following Vice President Spiro Agnew’s resignation two days earlier, President Richard Nixon nominated Representative Gerald Ford of Michigan to succeed Agnew as Vice President.

The United States Senate voted 923 to confirm Ford on November 27 and, on December 6, the House of Representatives did the same by a vote of 38735. Ford was sworn in later that day before a joint session of the United States Congress.[32]

When Gerald Ford became President, the office of Vice President became vacant. On August 20, 1974, after considering Melvin Laird and George H. W. Bush, President Ford nominated former New York Governor Nelson Rockefeller to be the new vice president.

On December 10, 1974, Rockefeller was confirmed 907 by the Senate. On December 19, 1974, Rockefeller was confirmed 287128 by the House and sworn into office later that day in the Senate chamber.[32]

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a villous adenoma (a pre-cancerous lesion) was discovered. When told by his physician (Dr. Edward Cattau) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.[33]

That afternoon, Reagan consulted with White House counsel Fred Fielding by telephone, debating whether to invoke the amendment and, if so, whether such a transfer would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan recommended that Reagan transfer power and two letters doing so were drafted: the first letter specifically invoked Section 3 of the Twenty-fifth Amendment; the second only mentioned that Reagan was mindful of this provision. At 10:32a.m. on July 13, Reagan signed the second letter and ordered its delivery to the appropriate officers as required under the amendment.[34] Vice President George H. W. Bush was Acting President from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a second letter to resume the powers and duties of the office.

Books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan’s autobiography, An American Life, argue President Reagan’s intent to transfer power to Vice President Bush was clear. Fielding himself adds:

I personally know he did intend to invoke the amendment, and he conveyed that to all of his staff and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his successor.

On June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke Section 3 of the amendment, temporarily transferring his powers to Vice President Dick Cheney. The medical procedure began at 7:09a.m. EDT and ended at 7:29a.m. EDT. Bush woke up twenty minutes later, but did not resume his presidential powers and duties until 9:24a.m. EDT after the president’s physician, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no aftereffects. Unlike Reagan’s 1985 letter, Bush’s 2002 letter specifically cited Section 3 as the authority for the transfer of power.[34]

On July 21, 2007, President Bush again invoked Section 3 in response to having to undergo a colonoscopy, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 at 7:16a.m. EDT. He reclaimed his powers at 9:21a.m. EDT. As happened in 2002, Bush specifically cited Section 3 when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.[34]

While Section 4 is the only part of the amendment that has never been invoked,[35] there have been two instances in which invoking Section 4 of the Twenty-fifth Amendment was considered. Both involved the 40th President of the United States, Ronald Reagan.

Following the attempted assassination of Ronald Reagan on March 30, 1981, Vice President George H. W. Bush did not assume the presidential powers and duties as Acting President. Reagan was unable to invoke Section 3, because he was in surgery. Bush did not invoke Section 4, because he was on a plane returning from Texas. Reagan was out of surgery by the time Bush arrived in Washington.[36] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.[37]

Upon becoming the White House Chief of Staff in 1987, Howard Baker was advised by his predecessor’s staff to be prepared for a possible invocation of the Twenty-fifth Amendment[38] due to Reagan’s perceived laziness and ineptitude.[39][40]

According to the PBS program American Experience,

What Baker’s transition team was told by Donald Regan’s staff that weekend shocked them. Reagan was “inattentive, inept”, and “lazy”, and Baker should be prepared to invoke the 25th Amendment to relieve him of his duties.

Reagan biographer Edmund Morris stated in an interview aired on the program,

The incoming Baker people all decided to have a meeting with him on Monday, their first official meeting with the President, and to cluster around the table in the Cabinet room and watch him very, very closely to see how he behaved, to see if he was indeed losing his mental grip.

Morris went on to explain,

Reagan who was, of course, completely unaware that they were launching a death watch on him, came in stimulated by the press of all these new people and performed splendidly. At the end of the meeting, they figuratively threw up their hands realizing he was in perfect command of himself.[39][40][41]

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Twenty-fifth Amendment to the United States Constitution …

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

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Fifth Amendment | United States Constitution | Britannica.com

Twenty-fifth Amendment | United States Constitution …

Twenty-fifth Amendment, amendment (1967) to the Constitution of the United States that set forth succession rules relating to vacancies and disabilities of the office of the president and of the vice president. It was proposed by the U.S. Congress on July 6, 1965, and it was ratified on Feb. 10, 1967.

While the first section of the Twenty-fifth Amendment codified the traditionally observed process of succession in the event of the death of the presidentthat the vice president would succeed to the officeit also introduced a change regarding the ascent of the vice president to president should the latter resign from office. In the event of resignation, the vice president would assume the title and position of presidentnot acting presidenteffectively prohibiting the departing president from returning to office.

The second section of the amendment addresses vacancies in the office of the vice president. Traditionally, when the office of vice president was vacant, usually through the vice presidents succession to the presidency following the death of the president, the office of vice president stood vacant until the next election. Through the Twenty-fifth Amendment, the president would nominate a vice president, who would be subject to confirmation by the U.S. Congress. Only a few years after the amendments ratification, this section was put into effect. In 1973 Spiro Agnew resigned as Pres. Richard M. Nixons vice president, and Nixon subsequently selected Gerald R. Ford, who was then serving as minority leader in the House of Representatives, to serve as vice president. Despite the fact that Nixon and Ford were Republicans and the Democrats retained majorities in both the House and the Senate, Ford was easily confirmed, which indicated that the process would focus less on policy positions than a general fitness for office. Ford assumed the duties of vice president on Dec. 6, 1973, and upon Nixons resignation from office to avoid impeachment, Ford became the first president to accede to office according to the Twenty-fifth Amendment on Aug. 9, 1974. Had the Twenty-fifth Amendment not been in effect, Nixon would not have been able to replace Agnew, and it remains speculative whether Nixon would have resigned prior to impeachment and a trial and thus enabled the Democratic speaker of the House of Representatives to become president under the Presidential Succession Act of 1947.

The third section of the amendment set forth the formal process for determining the capacity of the president to discharge the powers and duties of office. It assumes that the president has the presence of mind and physical ability to produce a written statement formally notifying the president pro tempore of the Senate and the speaker of the House of such circumstances, which would result in the vice presidents temporarily serving as acting president. In the event that a president may be unable to declare his inability to discharge the powers and duties of office, the fourth section of the amendment requires such determinations to be made jointly by the vice president and the cabinet, with the vice president immediately assuming the position of acting president.

Prior to the passage of the amendment, nine presidentsWilliam Henry Harrison, Zachary Taylor, Abraham Lincoln, James Garfield, William McKinley, Woodrow Wilson, Warren G. Harding, Franklin D. Roosevelt, and Dwight D. Eisenhowerexperienced health crises that left them temporarily incapacitated, with death resulting in six cases (Harrison, Taylor, Lincoln, Garfield, McKinley, and Harding). After the passage of the amendment, Pres. Ronald Reagan was incapacitated for some 24 hours while undergoing surgery for a gunshot wound resulting from a failed assassination attempt, though no official designation of presidential responsibility was ever made. Indeed, this portion of the Twenty-fifth Amendment has never been invoked.

The full text of the amendment is:

Section 1In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

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Twenty-fifth Amendment | United States Constitution …

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

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Fifth Amendment | United States Constitution | Britannica.com

Amendment V

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 final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and “I plead the Fifth” became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

V… v artiguist source, uruguay | educational institution flags (australia) | v (tv) | valparaso region (chile) | venda (south african homeland) | va’ad qiryat haim municipality of haifa (israel) | va’ad qiryat shmu’el municipality of haifa …http://fotw.vexillum.com/flags/keywordv.html

What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of …http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

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Amendment V

Annenberg Classroom – Fifth Amendment

Fifth Amendment – The MeaningGrand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

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Annenberg Classroom – Fifth Amendment

Double Jeopardy Clause – Wikipedia

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”[1] The four essential protections included are prohibitions against, for the same offense:

Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant’s plea unconditionally.[2] Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which “manifest necessity” has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment.

In United States v. Felix 503 U.S. 378 (1992), the U.S. Supreme Court ruled: “a[n]…offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes.”[3][4]

Sometimes the same conduct may violate different statutes. If all elements of a lesser offense are relied on to prove a greater offense, the two crimes are the “same offense” for double jeopardy purposes, and the doctrine will bar the second prosecution. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not”.[5] The test was applied in Brown v. Ohio, 432 U.S. 161 (1977), where the defendant had first been convicted of operating an automobile without the owner’s consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same “criminal transaction”, but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, 397 U.S. 436 (1970), the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury’s acquittal had to be based on the conclusion that the defendant’s alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.

Once acquitted, a defendant may not be retried for the same offense: “A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense.”[6] Acquittal by directed verdict is also final and cannot be appealed by the prosecution.[7] An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution.[8] A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge’s determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Additionally, although a judge may overrule a guilty verdict by a jury, he or she does not have the same power to overrule a not guilty verdict.

More specifically, as stated in Ashe v. Swenson, 397 U.S. 436 (1970): “…when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Res judicata is a term of general application. Underneath that conceptual umbrella is the concept of collateral estoppel. As applied to double jeopardy, the court will use collateral estoppel as its basis for forming an opinion[citation needed].

If a defendant charged with murder in the first degree is convicted for murder in the second degree, and later the jury’s conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted them of first degree murder.

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply, despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not, as decided by the U.S. Supreme Court in United States v. Josef Perez (1824). Cases dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction that has been set aside following the grant of a motion for new trial, that has been reversed on appeal, or that has been vacated in a collateral proceeding (such as habeas corpus) would not violate double jeopardy because the judgment in the first trial had been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

Prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.

If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial.

Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States 437 U.S. 1, (1978), the Court held that “it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.”[9]

If the earlier trial is a fraud, double jeopardy will not prohibit a new trial because the party acquitted has prevented themselves from being placed into “jeopardy” to begin with.[10]

The Double Jeopardy Clause of the Fifth Amendment does not attach in a grand jury proceeding, or bar a grand jury from returning an indictment when a prior grand jury has refused to do so.[11]

A person who is convicted of one set of charges cannot in general be tried on additional charges related to the crime unless said additional charges cover new facts against which the person in question has not yet been acquitted or convicted. The test that determines whether this can occur is the Blockburger test.

An example of this are the charges of “conspiring to commit murder” and “murder”. Both charges typically have facts distinct from each other. A person can be charged with “conspiring to commit murder” even if the murder never actually takes place if all facts necessary to support the charge can be demonstrated through evidence. Further, a person convicted or acquitted of murder can, additionally, be tried on conspiracy as well if it has been determined after the conviction or acquittal that a conspiracy did, in fact, take place.

Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant’s favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that “only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.”

The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same “finality” as acquittals, and may therefore be reviewed by the courts.[citation needed]

The prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.

In Arizona v. Rumsey, 467 U.S. 203 (1984), a judge had held a separate hearing after the jury trial to decide if the sentence should be death or life imprisonment, in which he decided that the circumstances of the case did not permit death to be imposed. On appeal, the judge’s ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the conclusion of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.

Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (crimes must be proven beyond a reasonable doubt, whereas civil wrongs need only be proven by preponderance of evidence or in some matters, clear and convincing evidence). Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil court system). For example, O. J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.[12]

If the defendant happened to be on parole from an earlier offense at the time, the act for which he or she was acquitted may also be the subject of a parole violation hearing, which is not considered to be a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed to be criminal by the court may be re-considered by the parole board. This legal board could deem the same evidence to be proof of a parole violation. Most states’ parole boards have looser rules of evidence than is found in the courts for example, hearsay that had been disallowed in court might be considered by a parole board. Finally, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that he or she was acquitted of in court.

In the American military, courts-martial are subject to the same law of double jeopardy, since the Uniform Code of Military Justice has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding non-judicial punishment (or NJP) is considered to be akin to a civil case and is subject to lower standards than a court-martial, which is the same as a civilian court of law. NJP proceedings are commonly used to correct or punish minor breaches of military discipline. If a NJP proceeding fails to produce conclusive evidence, however, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court-martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.

The most famous American court case invoking the claim of double jeopardy is probably the second murder trial in 1876 of Jack McCall, killer of Wild Bill Hickok. McCall was acquitted in his first trial, which Federal authorities later ruled to be illegal because it took place in an illegal town, Deadwood, then located in South Dakota Indian Territory. At the time, Federal law prohibited all except Native Americans from settling in the Indian Territory. McCall was retried in Federal Indian Territorial court, convicted, and hanged in 1877. He was the first person ever executed by Federal authorities in the Dakota Territory.

Double jeopardy also does not apply if the defendant were never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the futureif not barred by some statute of limitations.

Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court has ruled that the double jeopardy clause applies to the states as well through incorporation by the Fourteenth Amendment (Benton v. Maryland).

The government of the United States and of each State therein may each enact their own laws and prosecute crimes pursuant thereto, provided there is no prohibition by the Constitution of the United States or of the state in question. Such is known as the “dual sovereignty” or “separate sovereigns” doctrine.

The earliest case at the Supreme Court of the United States to address the matter is Fox v. State of Ohio[13] in 1847, in which the petitioner, Malinda Fox, was appealing a conviction of a state crime of passing a counterfeit silver dollar. The power to coin money is granted exclusively to Congress, and it was argued that Congress’s power precludes the power of any State from prosecuting any crimes pertaining to the money, an argument the Supreme Court rejected in upholding Fox’s conviction.

A case that followed on Fox is United States v. Cruikshank,[14] in which the Supreme Court stated that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

In 1920 the United States was fresh in to the Prohibition Era. In one prosecution that occurred in Washington state, a defendant named Lanza was charged under a Washington statute and simultaneously under a United States statute, with the federal indictment stating several facts also stated in the Washington indictment. The Supreme Court addressed the question of the Federal government and a State government having separate prosecutions on the same facts in United States v. Lanza:[15]

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government (Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. (EDITOR’S NOTE: the Barron precedent was superseded 35 years later by the 14th Amendment)

There may also be Federal laws that call other facts into question beyond the scope of any State law. A state may try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. The officers of the Los Angeles Police Department who were charged with assaulting Rodney King in 1991 were acquitted by a jury of the Superior Court, but some were later convicted and sentenced in Federal court for violating King’s civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights Movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.

Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted in state court in North Carolina for the murders in 1985 of Kathryn Eastburn (age 31) and her daughters Kara, age five, and Erin, age three, who were stabbed to death in their home near Fort Bragg, North Carolina.[16] Two decades later, Hennis was recalled to active duty, court-martialed by the Army for the crime, and convicted.[17] Richard Dieter, executive director of the Death Penalty Information Center, observed of this case, “Certainly, no one [in the US] has been exonerated and then returned to death row for the same crime except Hennis.”[18]

Furthermore, as ruled in Heath v. Alabama (1985), the “separate sovereigns” rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.[19]

Only the states and tribal jurisdictions[20] are recognized as possessing a separate sovereignty, whereas territories of the United States[21], the military and naval forces, and the capital city of Washington, D.C., are exclusively under Federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under Federal jurisdiction.

Though the Supreme Court of the United States has recognized the dual sovereignty doctrine as an exception to double jeopardy, the United States will not exercise its dual sovereignty power on everyone who becomes subject to it. As a self-imposed limitation on its dual sovereignty power, the United States Department of Justice has a policy called the “Petite” policy, named after Petite v. United States, 361 U.S. 529 (1960). The formal name of the policy is “Dual and Successive Prosecution Policy”[22] and it “establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.”

Under this policy, the Department of Justice presumes that any prosecution at the State level for any fact applicable to any Federal charge vindicates any Federal interest in those facts, even if the outcome is an acquittal. As an example, a person who commits murder within the jurisdiction of a State is subject to that State’s murder statute and the United States murder statute (18 U.S.C.1111). The Federal government will defer to the State to prosecute under their statute. Whatever the outcome of the trial, acquittal or conviction, the Department of Justice will presume that prosecution to vindicate any Federal interest and will not initiate prosecution under the United States Code.

However that presumption can be overcome. The policy stipulates five criteria that may overcome that presumption (particularly for an acquital at the State level):

The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances:

The presumption also may be overcome, irrespective of the result in a prior state prosecution, in those rare cases where the following three conditions are met:

The existence of any of these criteria is to be determined by an Assistant Attorney General of the United States. If a prosecution is determined to have proceeded without authorization, the Federal government may and has requested the Court vacate an indictment. Such a move is in line with the Courts vacating indictments wherein prosecutions were discovered to have violated Department of Justice policy. Indictments have also been vacated when the Federal government first represents to the Court the prosecution was authorized but later determines that authorization to have been mistaken.[23]

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Double Jeopardy Clause – Wikipedia

US Government for Kids: Fifth Amendment

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From the Constitution

Here is the text of the Fifth Amendment from the Constitution:

“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 Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called “taking the fifth.” The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

You’ve probably heard the police on TV say something like “you have the right to remain silent, anything you say or do may be used against you in a court of law” when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don’t have to testify against themselves.

The amendment also states that a person has a right to “due process of law.” Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

The last section says that the government can’t take a person’s private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

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US Government for Kids: Fifth Amendment

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

Read the rest here:

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment – Kids | Laws.com

A Guide to the Fifth Amendment

The Fifth Amendment, or Amendment V of the United States Constitution is the section of the Bill of Rights that protects you from being held for committing a crime unless you have been indicted correctly by the police. The Fifth Amendment is also where the guarantee of due process comes from, meaning that the state and the country have to respect your legal rights. The Fifth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by of the states on December 15, 1791.

History of the Fifth Amendment

Once the United States won their independence from the British Parliament and monarchy that had acted like tyrants, the Framers of the United States Constitution did not trust large, centralized governments. Because of this, the Framers wrote the Bill of Rights, which were the first 10 amendments, to help protect individual freedoms from being hurt by the governmental. They included the Fifth Amendment, which gave five specific freedoms to American citizens.

Understanding the Fifth Amendment Line by Line

If you are confused by what each line means, here are some explanations to make the Fifth Amendment easier to understand:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury: No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. If there is enough evidence, an indictment is then issued, which means that the person who is charged with the crime will can put on trial for the crime.

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: People in the military can go to trial without a grand jury first deciding that it is necessary. This is the case if the military person commits a crime during a national emergency or a war.

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: If someone is put on trial for a certain crime and the trial ends, the person cannot be tried once more for the same crime. If a person is convicted of a crime and then serves his or her time in jail, or if the person is acquitted, he or she cannot be put on trial a second time.

Nor shall be compelled in any criminal case to be a witness against himself: The government does not have the power to make someone testify against himself. That is why a trial uses evidence and witnesses instead of the testimony of the accused person.

Nor be deprived of life, liberty, or property, without due process of law: The government cannot take away a persons life, property, or freedom without following certain steps that give the person a fair chance. This is what is known as due process. Due Process helps protect a persons rights.

Nor shall private property be taken for public use, without just compensation: The government cannot take away a persons property for public use without somehow paying them back for it.

Facts About the Fifth Amendment

The Fifth Amendment was introduced into the Constitution by James Madison.

The ideas in the Fifth Amendment can be traced back to the Magna Carta, which was issued in 1215.

A defendant cannot be punished for using his right to silence during a criminal trial, but there are some consequences to using it in a civil trial.

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Fifth Amendment – Kids | Laws.com

Fifth Amendment Activities | United States Courts

“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.”Fifth Amendment, U.S. Constitution

Miranda v. ArizonaAdults in police custody and due process rights

J.D.B. v. North CarolinaJuveniles in police custody and due process rights

Read this article:

Fifth Amendment Activities | United States Courts

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

See the article here:

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

Follow this link:

Fifth Amendment | United States Constitution | Britannica.com

Amendment V – United States American History

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 final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and “I plead the Fifth” became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

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What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of …http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

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Amendment V – United States American History

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

Read more here:

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment Activities | United States Courts

“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.”Fifth Amendment, U.S. Constitution

Miranda v. ArizonaAdults in police custody and due process rights

J.D.B. v. North CarolinaJuveniles in police custody and due process rights

Go here to see the original:

Fifth Amendment Activities | United States Courts

Amendment V – United States American History

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 final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and “I plead the Fifth” became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

V… v artiguist source, uruguay | educational institution flags (australia) | v (tv) | valparaso region (chile) | venda (south african homeland) | va’ad qiryat haim municipality of haifa (israel) | va’ad qiryat shmu’el municipality of haifa …http://fotw.vexillum.com/flags/keywordv.html

What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of …http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

Continued here:

Amendment V – United States American History

Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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.

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Fifth Amendment | United States Constitution | Britannica.com

Fifth Amendment Activities | United States Courts

“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.”Fifth Amendment, U.S. Constitution

Miranda v. ArizonaAdults in police custody and due process rights

J.D.B. v. North CarolinaJuveniles in police custody and due process rights

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Fifth Amendment Activities | United States Courts


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