Amendment Five – 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 by 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 Fourth Amendment notwithstanding, there’s a way for our cunning tyrant to try to get around us – they can go right ahead with the seizures and arrests while claiming that of course they were all above-the-board! In fact, in some cases the tyrant may even be correct. Maybe they really did have a just cause to search a home, did find real evidence of a serious crime, and got the actual culprit.
Sure they did. Are you gonna take their word for it?
Let’s make sure that their word is good, even if they aren’t. Should they try any shenanigans, the Fifth Amendment steps in to elaborate on what the Fourth has made plain. Even if you think you have a legitimate cause to punish a criminal, you have to prove it before a group of his fellow citizens before you even try the case. When you try the case, you get one shot at it – you can’t just bog down somebody you don’t like in an endless series of charges and trials. Neither can you force that person to confess or otherwise incriminate himself. And the state can’t just help itself to your stuff.
Plenty of people know about “pleading the Fifth” but it covers more than just keeping your mouth shut under questioning. (Not that this is a bad idea in any case:
Hat tip for that video to attorney and congressional candidate T Greg Doucette, @greg_doucette, via Twitter.) It covers much more than that. Further, it’s worth noting that the one exception actually written into the Amendment covers the armed forces; or the Militia (that’s us, remember) ONLY during actual service. We as citizens have greater protections than the agents of the government are granted, unless we are acting as such agents ourselves, such as National Guardsmen called to active duty.
This still leaves our clever would-be Komissar some wiggle as to what, exactly, constitutes due process or just compensation. It also leaves aside what happens after an indictment but before a conviction. The story must continue…