The Fifth Amendment, as with the rest of the Bill of Rights, is a superfluous restraint on federal power. It can be argued that the Fifth Amendment is not superfluous because it imposes certain specified limits and conditions on the federal governments use of legislative powers pursuant to its Enumerated Powers under Article I, Section 8. However, this distinction is of little significance.

The Fifth Amendment can be broken down as follows. In any federal matter, an individual:

- must be indicted by a grand jury to answer for a capital crime, unless certain conditions are present;

- may not face trial more than once for the same crime; may not be compelled to testify against oneself in a criminal case;

- may not be deprived of life, liberty or property without due process.

Lastly, the federal government may not take private property for public use (pursuant to its Enumerated Powers), without providing fair compensation to the property owner.

Fifth Amendment and Eminent Domain Abuse

There was an uproar throughout the United States in 2005 when the Supreme Court handed down its decision in Kelo v. City of New London.

The Supreme Courts decision, written by Justice John Paul Stevens, said private property seized by the city of New London, Connecticut was constitutional under the Fifth Amendment, even though the seized land was to be used for private development as part of a local economic redevelopment program. The Takings Clause of the Fifth Amendment says, nor shall private property be taken for public use, without just compensation.

The issue in Kelo centered on whether it was public use to give private property seized under Imminent Domain laws to a private developer. In other words, does permissible public use include private use. The city of New London argued this was public use because the economic redevelopment program would create jobs, revitalize an economically distressed part of the city, and would result in increased tax revenue for the city. The Supreme Court agreed with the city of New London.

Much of the country was in an uproar because this meant any government (state, local, or federal) with Eminent Domain power could seize private property and give that property to another private party if the stated use was for economic redevelopment and increased local tax revenues. This public uproar was understandable and justified, but the decision in Kelo resulted in a strange situation where the ultimate result of the case was correct, though the Supreme Court conjured up an absurd decision.

The Fifth Amendment, and the rest of the Bill of Rights, does not apply against state and local governments. The Fifth Amendment was erected as a superfluous restraint on federal power. To say the Fifth Amendment applies against state and local governments would mean the Fifth Amendment and the Bill of Rights actually granted power to the federal government and its courts. This would be ludicrous.

An early Supreme Court case involving the Takings Clause was Barron v. Baltimore, 1833. This was one of the few cases Chief Justice John Marshall got right. The decision held the Fifth Amendment does not apply to the state governments and any remedy for the plaintiff would need to be settled under Maryland law. In addition, Justice Marshall acknowledged the federal courts did not have jurisdiction in the case since the taking of property at issue was not a federal matter.

The plaintiff, John Barron, sued the city of Baltimore claiming the value of his wharf property had been so impaired by the citys development/improvement project that it constituted a taking of his property under the Fifth Amendments Takings Clause. John Marshalls decision said the issue presented in the case was, of great importance, but not of much difficulty. Marshalls decision explains the text of the Constitution, the purpose of the Bill of Rights, and the context in which the Constitution and Bill of Rights were ratified. The opinion concludes, [w]e are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. As such, the court can take no jurisdiction of the cause.

The Kelo House, New London, Connecticut

The Supreme Court in Kelo v. City of New London should have reached the same conclusion as the court in Barron v. Baltimore, namely, that the Supreme Court did not have jurisdiction to hear the case because the Fifth Amendment and the Takings Clause do not apply against state and local legislation. The result of the Supreme Courts decision in Kelo was correct because it affirmed the decision of the Connecticut Supreme Court. The Connecticut Supreme Courts decision was dubious, but the Supreme Court does not have legitimate authority to overturn bad state supreme court decisions unless the Supreme Court has jurisdiction. State action under the Fifth Amendment does not fall within federal subject matter jurisdiction and does not involve a federal question.

Why did the Supreme Court assume jurisdiction in Kelo? Because, like other branches of the federal government, the Supreme Court loves power, and because of a judicial doctrine the Supreme Court created in the early twentieth century called the Incorporation Doctrine. For more on the Incorporation Doctrine, click here.

For more on Eminent Domain, generally, click here.

Another reason why the Fifth Amendment matters today would be so-called, Miranda rights.

Miranda rights were created out of thin air by the United States Supreme Court in 1966 with no basis whatsoever in the text, history, plain meaning, or logic of the Constitution.

Miranda rights create an obligation for police officers throughout the United States to warn criminal suspects being interrogated or in custody that they have certain rights prior to interrogation (e.g., right to remain silent, right to an attorney, etc). Generally, statements made to police without suspects first receiving Miranda warnings cannot be used against the suspect in court.

Ernesto Miranda convicted kidnapper, rapist and armed robber.

According to the Supreme Court, so-called Miranda Rights are based on the language from the Fifth Amendment, nor shall any person be compelled in any criminal case to be a witness against himself. The Fifth Amendment had been around for one-hundred and seventy-five years before the Supreme Court discovered these rights.

Whether requiring police officers to Mirandize criminal suspects is good policy or not is a separate matter. What matters is the Supreme Court took the Fifth Amendment a superfluous restraint on federal power, a shield erected by the states against the federal government and turned it into a weapon whereby federal judges could create laws out of thin air and impose their arbitrary personal opinions on all fifty states. Requiring police officers throughout the United States to follow rules made up out of thin air by federal judges is a radical, sweeping and dangerous power grab.

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.

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Fifth Amendment - U.S. Constitution & Bill of Rights