5th & 8th Amendment Cases

Fifth Amendment

The Fifth Amendment to the United States Constitution protects all individuals from being witnesses against themselves in criminal cases. It states:

“ 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.”[1]

The Fifth Amendment has five (5) clauses:[2]

The Grand Jury Clause
The Double Jeopardy Clause
The Self-Incrimination Clause
The Due Process Clause
The Takings Clause

The Grand Jury Clause

This clause comes directly from pre-constitutional common law. A person must be indicted by a Grand jury when he or she has been charged with a “capital or otherwise infamous crime.” Grand juries return indictments in many criminal cases. Grand juries are composed of peers and operate in closed proceedings. Specific instructions regarding the law are given to members of the Grand jury by the judge. Grand juries are not restricted by many constitutional restrictions that normally apply in other court proceedings. An example of this would be the Exclusionary Rule.[3] This rule states that evidence collected in violation of a person’s Fourth, Fifth, or Sixth amendment rights cannot be presented in court. The Grand Jury Clause does not apply this standard, so this evidence can be used during a grand jury. Individuals brought before a grand jury also have no right to have an attorney present in the grand jury room during hearings. The individual is free to leave the grand jury room to consult with his or her attorney during the proceedings.

The scope of a grand jury indictment can be amended by the prosecution only in specified circumstances. It was ruled by the United States Supreme Court on March 28, 1887, that the body of an indictment cannot be changed by the prosecuting attorney without that indictment being re-submitted to the grand jury. This was the “Ex Parte Bain” decision.[4] Any changes to the indictment, no matter how immaterial, such as adding or eliminating words, make no difference. The court effectively ruled that any changes to the original indictment makes the indictment a “different” indictment that the one presented to the grand jury “and must be re-presented” as a new indictment.

Ex Parte Bain was partially reversed in “United States v Miller” (471 U. S. 130-1985)[5] In the Miller case; the Supreme Court decided a looser interpretation of the rigid requirements set forth in Bain. In the Miller case, Miller asserted that the basis of his conviction was based on a “fatal variance” between the scheme and artifice to defraud charged in the indictment and that which the government proved at trial.”[6] The Ninth Circuit Court of Appeals agreed and vacated Miller’s judgment of conviction. The Ninth Circuit reasoned:

“a grand jury’s willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan.”[7]

The government clearly argued that “there were longstanding doctrines of criminal procedure premised on the notion that each offense whose elements are fully set out in an indictment can independently sustain a conviction.”[8]

The Supreme Court ruled on April 1, 1985, that:

“The variance complained of added nothing new to the grand jury’s indictment and constituted no broadening.”

….. We, therefore, disagree with the Court of Appeals on the issue of whether Miller has shown any compromise of his right to be tried only on offenses for which a grand jury has returned an indictment. No such compromise has been shown. The judgment of the Court of Appeals is accordingly reversed.”[9]

Under the Grand Jury Clause, an “infamous” crime is determined by the severity of the punishment that may be imposed, not the actual punishment that is imposed. In “Macklin v United States” (1886), “United States v Morland” (1922), and “Green v United States” (1957) established the three factors of “infamous” crimes. They are:

Infamous crimes are crimes where incarceration in prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime

Infamous crimes are defined to be those “punishable by imprisonment in the penitentiary.”

Imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year.[10]

The Double Jeopardy Clause

The Fifth Amendment to the United States Constitution protects a person from being “subject for the same offense to be twice put in jeopardy of life or limb.”[11] “Jeopardy” applies when the jury is set in a jury trial, when the first witness is sworn in during a bench trial, or when the plea is rendered. There are four (4) actions that are prohibited by the Double Jeopardy Clause:

1. Subsequent Prosecution after Acquittal:

One of the earliest cases which illustrates this principle is “Ball v United States,” 163 U.S. 662 (1896). In 1889, Millard Bell was arrested, along with two other men, for the murder of William T. Box. At trial, the jury acquitted Millard Ball but convicted the other two defendants. The two convicted defendants appealed the decision to the Supreme Court. In 1891, the Supreme Court reversed the original decision, stating that the indictment was not sufficient. This caused the re-indictment of all three defendants, including Ball, who was previously acquitted. The three defendants then pleaded prior jeopardy, but all were re-indicted, and all three were convicted of murder the second time. All three men appealed the conviction under the Double Jeopardy Clause. The Supreme Court reversed Ball’s conviction holding that under the Double Jeopardy clause, the fact that the first indictment was not sufficient did not dispense the jeopardy for his acquittal.[12]

2. Multiple Punishment, including Prosecution after Conviction:

“Blockburger v The United States” 284 U.S. 299 (1932) established the following test:

“The government may separately try and punish the defendant for two crimes if each crime contains an element not found in the other.”[13]

“Grady v. Corbin,” 495 U.S. 508 (1990), was a case where the Supreme Court employed “same conduct.” Mr. Corbin was driving under the influence in the fall of 1987 when he drove his car across the center line of a New York highway and struck two oncoming vehicles. The driver of the second car was in the accident while her husband was injured. Corbin was charged with DUI (driving under the influence) and pled guilty to this charge. The Supreme Court ruled in this case that Corbin could not be tried subsequently for homicide since he had already pled guilty and had been convicted of DUI in the same prosecution.[14] The Court interpreted that action as placing Corbin in “double jeopardy.”

(Note: The decision in “Grady v. Corbin” was overruled by “United States v. Dixon, 509 U.S. 688 (1993)”[15], which held that “subsequent convictions” for offenses that contained the same elements violated the Double Jeopardy Clause. This returned the courts to the principle set in “Blockburger v The United States” 284 U.S. 299 (1932))

Prosecution after Mistrial:

Rules for prosecution after a mistrial depends on who asked for a mistrial. If the defense moves for a mistrial, there is no restriction on retrial unless the prosecution acted in “bad faith.” Prosecution after a mistrial is also not barred if the prosecutor moves for a mistrial if the trial judge in the case finds a “manifest necessity” for granting a mistrial.[16] Manifest necessity can occur when a jury cannot reach a verdict or when circumstances prevent the continuation of the trial.

Prosecution in two Different States for the same Illegal Act:

Double jeopardy does not include a person being tried for the same illegal acts in two different states. This is due to the principle of “Dual Sovereignty.”[17] This states that each state in the union, as well as the United States as a whole, possesses sovereignty. In “Heath v Alabama” 474 U.S. 82 (1985), Larry Heath traveled from Russell County, Alabama, to Troup County, Georgia, and employed two individuals to come to his and his wife’s home in Russell County to murder his pregnant wife in 1981. He paid the individuals $2000.00. In 1982, Heath pled guilty to the crime in Georgia. He was convicted and sentenced to life in prison in the State of Georgia.

Sometimes after that, the State of Alabama (grand jury) indicted Heath for the crime of murder during a kidnapping.[18] Heath pled “former jeopardy” under Alabama as well as the United States Constitution stating that he was not eligible to be punished in Alabama because a Georgia court had already convicted and sentenced him for the same crime, which had not taken place in Alabama. (Mrs. Heath was, in fact, murdered in the State of Georgia as her assailants took her to Georgia before killing her.) Prosecutors in the State of Alabama argued that because the defendant’s wife had been kidnapped in Alabama, the murder may be punished in Alabama. On January 12, 1983, an Alabama jury convicted Heath of murder during a kidnapping in the first degree. Murder during a kidnapping is a capital offense. Heath was sentenced to death. Heath appealed the conviction to the Alabama Court of Criminal Appeals. The conviction was affirmed by the Alabama Court of Criminal Appeals as well as the Alabama Supreme Court. The United States Supreme Court ruled on December 3, 1985[19], that because of the “Dual Sovereignty” of the states of Alabama and Georgia, the defendant Heath, had committed two distinct offenses that violated the laws of two different states, therefore “double jeopardy” did not apply. Heath’s sentences were upheld. Although Heath received a life sentence in the state of Georgia, he was executed in the State of Alabama on March 21, 1992.

The Self- Incrimination Clause

The Fifth Amendment protects individuals from being forced to implicate or incriminate themselves. This is defined as exposing oneself to being accused of or charged with a crime. The legal protection against “compelled” self- incrimination historically comes from the widespread use of torture and forced confessions in the late 16th and early 17th century in England.[20] Any person refusing to take an oath of innocence before any were made was considered guilty. Coerced confessions and torture were used to compel Puritans to identify other Puritans for persecution. John Lilburne refused to take the oath in 1637.

His action helped to bring about the “Humble Petition of Many Thousands to Parliament” in 1647.[21] The third demand in the petition was the “right against self-incrimination in criminal cases.” The Puritans brought this principle to the Americas, and it was later incorporated into the United States Constitution through the Bill of Rights. The most notable self-incrimination case is “Miranda v Arizona” 384 U.S. 436 (1966)[22]. This case protects the “right to remain silent.” Ernesto Miranda was arrested for theft of an item with a value of $8.00.[23]

After his arrest, Miranda was interrogated for two hours. He confessed to kidnapping and raping a woman days earlier. Miranda was not told that he could have an attorney present before and during questioning. He was also never told that he had the right to remain silent. Miranda was convicted based on his confession and was sentenced to twenty years in prison. His conviction was overturned, and the principles of informing those arrested of their right to silence and right to legal counsel were established and named the “Miranda” warning. The Miranda warnings that all law enforcement officers must issue are that:

They have the right to remain silent

They have the right to talk with an attorney before being questioned

They can have an attorney present during their questioning

They can have a court-appointed attorney if they cannot afford to hire a private attorney

Anything that they say during questioning can be used against them in court.

“Miranda v Arizona” also established that it was not sufficient that these rights could simply be read or told to the arrested person. The Supreme Court also stated that the arrested person must also “understand” the Miranda warning. Without this understanding by the arrested person, convictions have been overturned. The Supreme Court ruled that the protections of the Fifth Amendment in regards to the “right to remain silent” apply to questioning in other legal proceedings, such as other federal courts and state courts, under the “incorporation doctrine” of the Fourteenth Amendment.[24] This applies whether the court proceeding is civil or criminal.

The right to remain silent was sorely tested in United States Congressional hearings in the 1950s. During this time, witnesses were brought before the House Committee on Unamerican Activities under Senator Joseph McCarthy. Witnesses who refused to answer questions were accused of being “Fifth Amendment communists.” Senator McCarthy not only asked witnesses whether they belonged to the communist party but asked them to identify other persons who they knew to be communists.

These people lost jobs and positions in political and other organizations after asserting their Fifth Amendment rights. This rendered many Hollywood actors, directors, producers, and others connected to the entertainment industry unable to find work for years or lose their careers altogether, even though being a member of the communist party was not illegal.

Self-Incrimination-Self-regulatory Organization

The self- incrimination privilege does not extend to answering questions posed by a self-regulatory organization or non-governmental entity. A “self-regulatory organization” (SRO) possesses the power to place a person in jail as it is not a court of law. SROs lack subpoena powers. If the individual or individuals refuse to testify before the SRO, she or he can lose membership in the organization, which could restrict their participation in the industry. If the person does testify or give information to the SRO, the SRO may provide information about those statements to law enforcement agencies. Those agencies can then use the statements to prosecute the individual who made them.

Illegally Obtained Evidence

The Fifth Amendment limits the use of evidence that was obtained illegally by members of law enforcement. This evidence includes confessions obtained by torture as being illegally obtained evidence.[25] In “Chambers v. Florida,” 309 U.S. 227 (1940), four defendants were questioned for five days until they confessed to the murder of another man. The men were convicted and sentenced to death in the State of Florida. They appealed their convictions on the grounds that their confessions were obtained through prolonged and coercive interrogation, which led to a forced confession. The case was heard before the United States Supreme Court on January 6, 1940, by Thurgood Marshall, attorney for Chambers, one of the accused men. He argued that Chambers was questioned alone in a room with up to as many as ten police officers and other members of the general community. Chambers was not given an opportunity to obtain legal counsel and was not charged with the crime of murder for an entire week while being held in jail. Chambers and the other men maintained their innocence but, after five days of coercive questioning, confessed to the crime. On February 13, 1940, the Supreme Court of the United States ruled in favor of Chambers and the other three men. The Court stated that the facts showed that “the confessions had clearly been compelled and were therefore inadmissible.”[26] The Court ruled that the prosecution may not use statements stemming from “custodial interrogation”[27] of the defendant unless it can be shown that the accused person’s rights have been safe-guarded throughout the process of the interrogation. This would include the Miranda warning. Custodial Interrogation occurs when a person is questioned while they are in police custody.

In 2004, the Supreme court of the United States ruled in a 5 to 4 decision that is required identifying oneself to police under states’ “stop and identify” statutes are not unreasonable search or seizure and is not self-incrimination if the law enforcement officer has a reasonable suspicion that there is a crime already in progress or that a crime has already been committed by the person in question. The person refusing to identify himself or herself must comply with “self-identification” or be charged with obstruction of an officer discharging his or her duty. The person does not have to answer further questions beyond self-identification, as the court ruled that the person had “no reasonable belief that his name would be used to incriminate him.”[28] The case that featured this ruling was “Hiibel v. Sixth Judicial District Court of Nevada,” 542 U.S. 177 (2004). Traffic stops are not deemed to be “custodial.”

Age

Age can also be a factor in Fifth Amendment protections, especially in police custody cases. In the case of “J. D. B. v. North Carolina,” 564 U.S. 261 (2011), a 13-year-old boy was questioned without a Miranda warning at his school. He was not given an opportunity to contact his parents or legal guardians. The officials in North Carolina maintained that because the 13-year-old was not considered to be under arrest and was at school, there was no need to issue the Miranda warning. The Supreme Court ruled that the child’s age should have been considered when extending the custody test.[29] The Court remanded the case to the State of North Carolina Supreme Court and instructed it to make a new finding on custody that would consider age.

Right to Remain Silent

A person’s right to remain silent must be “unambiguous.” It must be clear. This was established by the Supreme Court in “Berghuis v. Thompkins,” 560 U.S. 370 (2010). The court stated that while there was no specific formula needed to assert the right to remain silent, a person cannot claim the right by simply “remaining silent.” Van Thompkins was considered a suspect in a fatal shooting in January 2010. After being advised of his Miranda rights, police officers interrogated him. Throughout 3 hours of interrogation, Thompkins did not respond to any questions. Thompkins, however, had not informed the police officers after getting his Miranda warning that he would be relying on this right and would not answer any forms of their inquiries until the officers asked him if he believed in God, prayed to God, and if he had prayed to God for forgiveness for having shot the victim.[30] Thompkins answered “yes” to all those questions and later claimed that he had invoked his Fifth Amendment “Right to Remain Silent” and that the answers he gave could not be used against him. The Supreme Court ruled that a person must “state” that she or she is “remaining silent.”[31]

Self-Incrimination- Providing Documents

Self- Incrimination can also apply when documents are supplied in response to a subpoena. Under the “Act of Production Doctrine,” [32] when an individual produces documents as a result of a subpoena being served, the very submission and/or production of the documents may create a “testimonial aspect,” which can be incriminating in itself. Submission confirms the existence, custody, and authenticity of information (documents) not already in the possession of law enforcement. This confirmation had been in effect since 1976. In 1996, Webster Hubbell had been indicted on various charges related to the Whitewater Investigation. These charges included tax-related violations as well as mail fraud and wire fraud charges based on documents the United States Government had gained from Hubbell through the subpoena process. As Hubbell served a jail sentence in October 1996, then Independent Counsel’s office headed by Kenneth Starr served him a “subpoena duces tecum,” calling for more documents for the grand jury.[33] Hubbell appeared before the grand jury in November of 1996 and at first invoked his Fifth Amendment privilege against self-incrimination. Hubbell refused to state that the documents requested by the Independent Counsel’s office even existed. But prosecutors in the case produced an order under 18, U.S.C. Section 6003(a)[34], which directed Hubbell to respond to the subpoena. The prosecutors also granted him “immunity to the extent allowed by law.” Hubbell thane responded to a series of questions and produced the numerous documents called for in the subpoena. The prosecutors then used the information to prosecute Hubbell for a second time. Hubbell took the second prosecution to the United States District Court, where the second indictment was dismissed. The prosecutors appealed the district court decision to the United Stated Supreme Court. The United States Supreme Court ruled in favor of Hubbell. In an 8 to 1 decision, the Court held:

“ ….. the Fifth Amendment privilege against self-incrimination protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.”[35] The Court ruled further that if the witness produces said documents pursuant to a grant of immunity, the government may not use the documents to prepare criminal charges against the compelled witness.

Corporations-Providing Documents

Corporations may be compelled to keep and turnover records as the United States Constitution only extends protections against self-incrimination to “natural persons.”[36] Individuals within a corporation still have Fifth Amendment protections. Individuals can assert those rights concerning their roles in corporate activities but cannot “plead” the Fifth Amendment concerning the corporation’s policies or the behavior of other corporate officers.

Refusal to Testify in a Criminal Case

When an individual refuses to testify in a criminal case, it is a violation of that person’s Fifth Amendment protections for the prosecution to comment or infer to the jury that the individual’s declination to testify is evidence of that individual’s guilt. This principle was decided by the United States Supreme court in “Griffin v. California”, 380 U.S. 609 (1965). Griffin was convicted of murder in this case and refused to testify at trial. In the final summation, the prosecution “made an issue” out of Griffin’s unwillingness to testify when it stated:

“Essie Mae is dead. She can’t tell you her side of the story. The defendant won’t.”[37]

The prosecution’s reference to the defendant exercising his Fifth Amendment right not to testify as an inference of guilt and inferring to the jury to use that information when deciding the verdict violated the defendant’s Fifth Amendment right. Though in 1965, this practice was legal under the California State Constitution, once again, Federal law remain supreme. Mr. Griffin’s conviction was reversed on this basis. Griffin was re-tried twice more for the murder of Essie Mae Hodson and found guilty during the third trail. Griffin was sentenced to death, but upon automatic appeal, that conviction was overturned.

Refusal to Testify in a Civil Case

Refusal to testify in a Civil case has consequences. The United States Supreme Court in “Baxter v. Palmigiano,” 425 U.S. 308 (1976) held:

“the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[38]

In the case of Federal income taxes, the Supreme Court has ruled that a taxpayer cannot use Fifth Amendment rights to refuse to file a required Federal tax return. This was determined in “Garner v. United States,” 424 U.S. 648 (1976). Garner sought to refute the use of his tax returns by the prosecution to refute his claim that his involvement in fixing sporting contests and illegal betting as “innocent.” He contended that the use of his tax returns violated his Fifth Amendment right against self-incrimination. The Court concluded that Garner had not been compelled to self-incrimination by the use of the information he disclosed on his tax returns as he was legally required to file the return. The Court stated:

“…if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not “compelled” him to incriminate himself.”[39]

Grants of Immunity

When the government gives an individual immunity from prosecution, that individual can be “compelled” (forced) to testify. Immunity may be either “transactional” or “use” immunity. In transactional immunity, the witness is immune from prosecution for offenses related to the testimony being given. In the use of immunity, the witness can be prosecuted, but his testimony cannot be used against him.[40] The Supreme Court further clarified in “Kastigar v. United States,” 406 U.S. 441 (1972), that the government need only give use immunity to compel testimony and that immunity not only extends to the witness’s testimony but to all evidence derived from it.[41]

Record Keeping

Record keeping that is statutory may go too far as it may implicate the record keeper's right against self-incrimination. This was provided for by the Supreme Court’s decision in “Leary v. United States, 395 U.S. 6 (1969)”. Timothy Leary, activist and college professor, was arrested for possession of marijuana after attempting to go to Mexico. When Leary was denied entry after crossing the bridge at Laredo, Texas, he drove back across the bridge and asserted that he and his passengers had nothing to declare as they were not admitted to Mexico. The inspector at the border asked to search Leary’s vehicle, where he found small amounts of marijuana. Leary was arrested under the “Marijuana Tax Act of 1937, Pub.L. 75–238” because he did not follow the record-keeping requirements for the possession of marijuana without paying the appropriate occupational tax involved. In “Leary v. United States, 395 U.S. 6(1969)”[42], The Supreme Court ruled that because the Marijuana Tax Act compelled Leary to identify himself as a “member of a suspect group” (those who were “licensed transferrers” of marijuana”), he had a “real and appreciable” hazard of self-incrimination.[43]

The ruling, in this case, led to the repeal of the Marijuana Tax Act of 1937 by the United States Congress in 1970.

Combinations and Passwords

Combinations and passwords raise issues of self-incrimination. While no case has come before the United States Supreme Court yet, lower courts have given conflicting rulings on whether computer passwords are compelled to be disclosed in violation of the Fifth Amendment.[44]

Employer Coercion

Workers may be required to answer questions regarding on-the-job conduct posed by their employers as a condition of employment. These questions would be narrowly confined to “on-the-job” conduct and matters. The employee can invoke “Garrity Rights” before she or he answers the questions. This principle applies most commonly to police officers, teachers, and other public employees. This principle was developed in “Garrity v. New Jersey, 385 U.S. 493 (1967).”[45] In 1961, Edward Garrity and five other police officers in 2 New Jersey cities were questioned about “ticket fixing.” The officers were not under arrest and were told their responses to questions could bring about criminal charges against them. They were further told that they did not have to answer any questions but that their refusal to answer could cause them to lose their jobs. Based on this, the officers involved had criminal charges brought against them and subsequently lost their jobs. The officers were convicted and appealed their charges to the New Jersey State Supreme Court, where their convictions were upheld. The Supreme Court ruled in “Garrity v. New Jersey, 385 U.S. 493 (1967)” that the officers were “compelled” to testify against themselves,” which constituted “coercion. Their convictions were overturned. Public employees should be given the “Garrity Warning” before they answer questions posed by their employer. If not, the employee can invoke “Garrity Rights.” The Supreme Court stated in its decision:

“'The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent to a confession of guilt or a conclusive presumption of perjury. * * * The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”[46] Below is the typical wording of the Garrity warning, though it can vary slightly from state to state and from local jurisdictions:

“You are being asked to provide information as part of an internal and/or administrative investigation. This is a voluntary interview, and you do not have to answer questions if your answers would tend to implicate you in a crime. No disciplinary action will be taken against you solely for refusing to answer questions. However, the evidentiary value of your silence may be considered in administrative proceedings as part of the facts surrounding your case. Any statement you do choose to provide may be used as evidence in criminal and/or administrative proceedings.”[47]

The Kalkines Warning below applies to usual federal employees and is stated:

“You are being questioned as part of an internal and/or administrative investigation. You will be asked a number of specific questions concerning your official duties, and you must answer these questions to the best of your ability. Failure to answer completely and truthfully may result in disciplinary action, including dismissal. Your answers and any information derived from them may be used against you in administrative proceedings. However, neither your answers nor any information derived from them may be used against you in criminal proceedings, except if you knowingly and willfully make false statements.”[48]

The Due Process Clause

Under the Fifth Amendment, the “Due Process” clause ensures that:

“No person shall ... be deprived of life, liberty, or property, without due process of law ...”[49]

While this remains a bedrock in today’s laws and court decisions, this was not always so. The most famous or infamous case surrounding this clause and substantive due process was “Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).”[50] This case was heard by the Supreme court in 1857 and centered on the “property rights” of Sandford, a slaveholder, and Dred Scott, an enslaved person.

Mr. Scott contended that since Sandford had taken him out of the State of Missouri, a state where the holding of enslaved people was “legal,” to the Louisiana Territory, where the holding of enslaved people was illegal, granted Scott his freedom, even when Sandford brought Mr. Scott back to Missouri. Scott contended that he was a “free citizen” at the point he was taken into free territory. The Supreme Court ruled otherwise. It stated:

Slaves, former slaves, and their children could never be citizens of the United States nor were ever intended to be per the U.S. Constitution, and therefore have no standing to file a suit.

The United States Congress had no authority to prohibit slavery in United States Territories.

Slaves(“property”) could not be taken from their owners without “due process.”[51]

In one ruling, the Unites States Supreme Court relegated all peoples of African descent in the nation to be “non-citizens” with no rights at all. The Court ruled that to free Dred Scott would deprive Sandford of his “due process” rights as well as his “property” under the Fifth Amendment simply because Sanford had moved to another location in the United States. This was regarded as the initial case employing “Substantive Due Process.” Substantive Due Process is defined as:

“a behavior that is a protected right if the behavior is “deeply rooted” in this nation’s history or traditions.”[52]

Clearly, in “Dred Scott v. Sandford,” Slavery was recognized as a “deeply rooted” tradition. This decision was overturned by the Fourteenth Amendment to the United States Constitution, adopted on July 9, 1868, granting citizenship and corresponding rights to all enslaved peoples in the United States. This was part of the “Reconstruction Amendments.” Subsequent Due Process cases relied on the Fourteenth Amendment and substantive due process. Notable among these cases was “Roe v. Wade, 410 U.S. 113 (1973).”[53]

The Takings Clause

The last clause of the Fifth Amendment is referred to as the “Takings” clause and establishes that the federal government and every state have the power of “eminent domain,” the power to take private property for public use. The Fifth Amendment states:

“No person shall…. without due process of law be obliged to relinquish his property, where it may be necessary for public use, without just compensation.”[54]

Eminent Domain is the taking of private property for “public use.” Federal and state governments are limited in the use of this power as they are required to pay “just compensation” if private property is taken for public use. This provision of the Fifth Amendment did not originally apply to state governments. This factor changed in the “Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)” case.[55] The United States Supreme Court decided, in this case, that the Fourteenth Amendment extended the effects of the “takings clause” in the Fifth Amendment to the states. The majority opinion of the court was given by Justice John M. Harlan. Harlan argued that “due process of law” required fair compensation to be given for any private property seized by the state. The City of Chicago had claimed that “due process” had been served simply by allowing Chicago B&Q Railroad to “grieve” the taking of its land for public purpose. Justice Harlan maintained:

“in determining what is due process of law, regard must be had to substance, not to form.”[56] The Supreme Court decided that part of the “substance” of due process requires the legislation to provide for fair compensation for private property. Justice Harlan further stated:

“The legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision not be made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice.”

The Supreme Court decision goes further to state:

“ In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by the state of a right secured by that instrument.”[57]

This case, for the first time, incorporated the Fifth Amendment “Takings” clause into the “Due Process” clause of the Fourteenth Amendment and applied the Bill of Rights against the states.

This case illustrates that a private citizen or private entity sued a city government for following what then was a state law. In essence, this action represented the suing of the State of Illinois, and federal law remained supreme.

(Note: The examples cited above illustrate how this amendment has been applied in specific cases. Fifth Amendment claims are not limited to those case examples shown above.)

NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located. Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.

 

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[1] United States Constitution, The Fifth Amendment, ratified December 1791.

[2] “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.1-18

[3] Ibid., p 4, August 13,2017

[4] Ob.cit. “Fifth Amendment to the United States Constitution,” p.4, August 13, 2017.

[5] Ibid. p.4

[6] United States v. Miller,471 U.S. 130 (1985), Google Scholar, September 3, 2017, pgs.1-7

[7] Ibid., p. 2

[8] Ob.cit, “United States v. Miller,” p.2

[9] Ob. cit., p.4

[10]Ob. cit. “Fifth Amendment to the United States Constitution,” p.5, August 13, 2017.

[11] Ibid. p.5

[12] “Ball v United States,” 163 U.S. 662(1896), Wikipedia, The Free Encyclopedia, pg.1-2, September 4, 2017

[13] “Blockburger v The United States” 284 U.S. 299 (1932), Wikipedia, The Free Encyclopedia, pg.1-2, September 4, 2017

[14] Grady v. Corbin, 495 U.S. 508 (1990), Wikipedia, The Free Encyclopedia, pg.1-2, September 24, 2017

[15] United States v. Dixon, 509 U.S. 688 (1993), Wikipedia, The Free Encyclopedia, pg.1-2, September 24, 2017

16 “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.5

17 Ibid., p.6

[18] Heath v. Alabama, 474 U.S. 82 (1985), Wikipedia, The Free Encyclopedia, pg.1-4, September 4, 2017

[19] Ibid., p3

[20] “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.5

[21] Ibid., p. 4

[22] Miranda v. Arizona, 384 U.S. 436 (1966), Wikipedia, The Free Encyclopedia, pg.1-6, September 4, 2017

23 Ibid., p.4

[24] Ob.cit., Miranda v. Arizona, 384 U.S. 436 (1966), Wikipedia, The Free Encyclopedia, pg.5, September 4, 2017

[25] Chambers v. Florida, 309 U.S. 227 (1940), Wikipedia, The Free Encyclopedia, December 30, 2018 p.1-5

[26] Ibid. p. 2

[27] “What is custodial Interrogation” Criminal-law.freeadvice.com, p. 1-2 March 5 2019

[28] Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)

[29] J. D. B. v. North Carolina”, 564 U.S. 261 (2011), Wikipedia, The Free Encyclopedia, December 30, 2018 p.1-6

[30] Berghuis v. Thompkins, 560 U.S. 370 (2010), Wikipedia, The Free Encyclopedia, December 30, 2018, p.-1-14

[31] Ibid p.4

[32] “Act of Production Doctrine”, United States v. Hubbell, 530 U.S. 27 (2000), p 4, Wikipedia, The Free Encyclopedia, December 30, 2018

[33] United States v. Hubbell, 530 U.S. 27 (2000), p 1-4, Wikipedia, The Free Encyclopedia, December 30, 2018

[34]“18 U.S. Code § 6003. Court and grand jury proceedings” United States Code, www.law.cornell.edu, March 17, 2019.

[35] Ob.cit. United States v. Hubbell, 530 U.S. 27 (2000), p.2

[36] “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.5

[37] “Griffin v. California”, 380 U.S. 609 (1965), Wikipedia, The Free Encyclopedia, December 30, 2018, p.1-6

[38] Ob.cit., “Fifth Amendment to the United States Constitution”, p.10

[39] Ibid. p 11

[40] Ob.cit., p.12

[41] “Kastigar v. United States, 406 U.S. 441 (1972)”, Wikipedia, The Free Encyclopedia, February 28, 2019, p.1-3

[42] Leary v. United States, 395 U.S. 6 (1969), Wikipedia, The Free Encyclopedia, November 24, 2018, p.1-3

[43] Ibid. p.2

[44] Ob.cit., “Fifth Amendment to the United States Constitution”, p.12

[45] “Garrity v. New Jersey, 385 U.S. 493 (1967)”, Wikipedia, The Free Encyclopedia, October 6, 2018, p.1-3

[46] Ibid. p.2

[47] Ibid.” Garrity Warning Statement” p 6.

[48] Ob.cit.

[49]“Due Process Clause” Wikipedia, The Free Encyclopedia, February 8, 2019, p.-1-15

[50] “Dred Scott v. Sandford”, 60 U.S. 393 (1857), Wikipedia, The Free Encyclopedia, March 24, 2019, p 1-13

[51] Ibid. p1

[52] Ob.cit., “Dred Scott v. Sandford”, 60 U.S. 393 (1857)” p.3

[53] “Roe v. Wade, 410 U.S. 113 (1973)” Wikipedia, The Free Encyclopedia, March 10, 2019 p.1-5

[54] Ibid. “Fifth Amendment to the United States Constitution” p.12

[55] “Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)”, Wikipedia, The Free Encyclopedia, January 25, 2019 p.1-5

[56] Ibid. p. 4

[57] Ob. cit. “Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)”, p 5.