The Constitution of the United States: Amendment 5 (Fifth Amendment – Trial and Punishment, Compensation for Takings)

The Constitution of the United States: Amendment 5 (Amendments 1-10 are known as the Bill Of Rights) (5th Amendment)

Amendment V. (Trial and Punishment, Compensation for Takings)

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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The Ninth Circuit’s rejection of Angel’s constitutional claim [Angel Raich in Gonzales v. Raich, 545 U.S. 1, 5 (2005)] shines a spotlight on a serious problem with the Supreme Court’s current approach to protecting liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. Ever since the New Deal, the Supreme Court has limited the protection afforded by the Due Process Clauses to what it calls “fundamental rights.” Unless the Court characterizes the liberty as “fundamental,” it will not evaluate or “scrutinize” the government’s claim that its restrictions on the liberty are truly necessary. With laws restricting mere “liberty interests” not deemed fundamental, the Court will blindly accept the government’s claim that its restriction is “reasonable.”

In short, a claimant challenging a statute needs a ticket into “Scrutiny Land” where the government must justify its restrictions on liberty. To get that ticket, a claimant must jump through the hoop of showing her liberty is fundamental. Otherwise, she automatically loses.

“Scrutiny Land,” by Randy E. Barnett, 106 Mich. L. Rev. 1479-1500 (2008) (23-page PDF)

More

• The Constitution of the United States: Amendments 1-10 are known as the Bill Of Rights, from The National Archives
• Fifth Amendment – Wikipedia
• Fifth Amendment – Findlaw
• See 10 Rules for Dealing with Police
• See Civil Asset Forfeiture – “Policing for Profit”
• The Constitution of the United States: A Transcription – The National Archives
• United States Constitution: Texts, Commentaries, Historical Texts and Judicial Decisions – Law Library of Congress
• The Constitution of the United States of America: Analysis and Interpretation – FDsys
• Constitution of the United States of America: Analysis and Interpretation, Govinfo.gov
• “Crime and Forfeiture,” CRS Report 97-139 (110-page PDF)
• “Contesting the Seizure of Vehicles Under Civil Forfeiture: What Process Is Due?” CRS Legal Sidebar LSB10581 (7-page PDF)
• “Ending Civil Asset Forfeiture Should Be a Bipartisan Project,” by Steven Greenhut, Reason, April 2, 2021

• “Federalism and the Constitution: Limits on Congressional Power,” CRS Report RL30315 (31-page PDF)
• Bill of Rights Card, from Two Seas Media
• “International Conflict and Property Rights: Fifth Amendment ‘Takings’ Issues,” CRS Report RS21040 (8-page PDF)
• “United States Sentencing Guidelines and the Supreme Court,” CRS Report RL32573 (33-page PDF)
• “Victims’ Rights Amendment in the 106th Congress,” CRS Report 97-736 (8-page PDF)
• “Federal Grand Juries: The Law in a Nutshell,” CRS Report RS20214 (10-page PDF)
• “Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis,” CRS Report RL33321 (35-page PDF)
• Amendment 5 – Heritage Guide to the Constitution

• “Capital Punishment: An Overview of Federal Death Penalty Statutes,” CRS Report RL30962 (25-page PDF)
• “Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” CRS Report 98-327 (21-page PDF)
• “Delegation of the Federal Power of Eminent Domain to Nonfederal Entities,” CRS Report RS22884 (8-page PDF)
• “The Endangered Species Act and Claims of Property Rights ‘Takings’,” CRS Report RL31796 (28-page PDF)
• “Wetlands Regulation and the Law of Property Rights ‘Takings’,” CRS Report RL30423 (55-page PDF)
• “DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues,” CRS Report R41800 (21-page PDF)
• “Perjury Under Federal Law: A Brief Overview,” CRS Report 98-808 (21-page PDF)
• CRS Annotated Constitution
• Meta-EE and the Constitution Part 4: Fifth Amendment
• The Privilege To Shut Up – Popehat, January 14, 2014

• Grand Jury Requirement – Heritage Guide to the Constitution
• Grand Jury Exception – Heritage Guide to the Constitution
• Double Jeopardy – Heritage Guide to the Constitution
• Self-Incrimination – Heritage Guide to the Constitution
• Due Process Clause – Heritage Guide to the Constitution
• Takings Clause – Heritage Guide to the Constitution
• “Civil Asset Forfeiture: Good Intentions Gone Awry and the Need for Reform,” by John Malcolm, Heritage, April 20, 2015
• “Policing for Profit – Institute for Justice,” (186-page PDF)

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