Constitution Paper

5^th Amendment

The 5^th Amendment is one of the ten Bill of Rights amendments, and pertains to legal procedure. In it are such key concepts to the American legal system as due process and the right to remain silent. Like much of the Bill of Rights, its roots can be traced back to the Magna Carta, the English Charter issued in 1215. It was implemented as one of the crucial guidelines to the interaction of the people and their laws. Its protection of the people’s rights under the law is a cornerstone of the American legal system, and it is a foundational concept to American democracy as a whole. Like many of the amendments, however, its implications remain today controversial, as it contains guidelines to the execution of acts pertaining to eminent domain. Interpreting the 5^th amendment and its implications regarding the issue of eminent domain remains highly controversial. It is undisputed, though, that the 5^th amendment is one of the most essential additions to the constitution, and understanding its content and implications is vital in the study of American government.

The first section of the amendment deals with indicting citizens for “infamous” crimes. The exact definition of infamous crimes is fairly modern, as it was addressed in Green v. U.S. (1958) where the Supreme Court defined an infamous crime as one in which a person serves a year or more in prison for (Infamous Crimes). The amendment states that no person can be indicted, or charged, with an infamous act, particularly one pertaining to murder, unless the person has been indicted by a grand jury. Exceptions to this rule apply to citizens in the military during war: in such cases, the military does not have to indict military personnel by way of a grand jury. A conflict with this particular exception came in the case O’Callahan v. Parker in 1969. In the case, an accused Sergeant had committed a federal offence while off duty and in civilian attire. The court martial that was scheduled to try the Sergeant was ruled unconstitutional by the Supreme Court because it bypassed indictment by grand jury. Normally, this would be considered undisputedly constitutional, but since the Sergeant was off – duty, the Supreme Court ruled that the court – martial had no jurisdiction to try the Sergeant (Milestone in Military Justice).

Today, with the fourteenth amendment in effect, this section of the 5^th amendment is not required by states. Today, two states do not have indictment by grand jury as a legal process. About half of the states do not require it.

The second section of the 5^th amendment prohibits double jeopardy. Double jeopardy is the act of trying a person for a single crime more than once. Formerly, this section did not pertain to state courts, but that was changed in Benton v. Maryland (1969). John Benton had been formerly charged of larceny and burglary by a Maryland court. The court found him guilty of burglary, but acquitted him of larceny. The jurors in the trial were required to swear their belief in God, but this process was later ruled unconstitutional by the Supreme Court in Schowgurow v. State. The state allowed Benton to undergo a new trial, but this time Benton was found guilty for both Burglary and Larceny. The Supreme Court ruled this new accusation of Larceny, where he had formerly been acquitted, as double jeapordy. Before, restrictions on double jeopardy did not apply to state courts, but the Supreme Court revised this and subsequently ruled that double jeopardy would from then on be ruled unconstitutional in state courts (Benton v. Maryland).

The most important ideal in the 5^th amendment has to do with the establishment of due process. The amendment states that no person, whether a citizen of the U.S. or not, may be punished for a crime without the due process of law, or in other words without a trial. This idea evolved directly from the Magna Carta, which prohibited unlawful imprisonment or punishment of any other kind.

Another famous subject of the 5^th amendment was the protection of witnesses from self – incrimination in a trial. Witnesses in a trial do not have to answer a question if they plead their 5^th amendment right. The reasoning behind this is that a witness may incriminate himself through answering a particular question, or he may put himself in danger of outside harm by accusing a gang member or such of a crime. This section has had a great effect on interrogation methods used by officials and police. In Chambers v. Florida (1940), for example, a witness to a crime had been interrogated for five straight days, without the ability to communicate to the outside world. The Supreme Court ruled that the information obtained from that interrogation was not to be used, as it was forced from the person, and that not allowing a witness to have a lawyer with him in the interrogation was unconstitutional. The length allowed for any one interrogation was lessened as well (Chambers v. Florida).

The final subject of the 5^th amendment deals with a highly controversial matter, that of eminent domain. The amendment states that the government has the power to use any tract of land already owned by a citizen for public use. The government is required to compensate the person(s) from whom they take the land from. The most controversial implication of the amendment is in the fact that it does not restrict the government from seizing land and giving it to private companies or developers. The only restriction is that the land must be used for the good of the public. In Kelo v. City of New London, the Supreme Court ruled by a vote of 5 – 4 that the city could take land from one private owner and give it to another, as the new private owner would use the land to further the economy of the city by building a research facility for the pharmaceutical company, Pfizer. The ruling did not violate the 5^th amendment, and the prior owner was compensated, however criticism of the ruling is based on moral claims, and not the actual legality of the decision (Kelo v. City of New London).

The 5^th amendment is critical to the legal system of the American government in many ways, and the reasons for its ratification are obvious. All concepts within it are essential to a fair and working legal system, with the exception of eminent domain, which is a debatable inclusion. Without due process, the prevention of self – incrimination and self – endangering, and the prevention of double jeopardy, we would have a chaotic legal system that endangered citizens and threw law back into the dark ages where inquisition threatened any good person.

“Benton v. Maryland.” Wikipedia. 27 October, 2007.

< http://en.wikipedia.org/wiki/Benton_v._Maryland>

“Chambers v. Florida.” The Justice Line. 27 October, 2007

< http://www.injusticeline.com/chambers.html>

“Infamous Crimes.” Federal Grand Jury. 27 October, 2007.

“Kelo v. New London.” Cornell University Law School. 27

October, 2007. < http://www.law.cornell.edu/supct/html/04-108.ZS.html>

“Milestone in Military Justice.” Duke Law. 27 October,

2007. < http://eprints.law.duke.edu/archive/00000357/>

Democratic Field

The Democratic party has a relatively strong field in terms of their presidential candidates this time around – certainly stronger than in 2004. Democratic candidates have been painted as at least slightly smarter than the average Republican candidate as well, due largely to the verbal mannerisms of the current president. They have weaknesses, but plenty of people will be willing to ignore these for the chance to remove anyone associated with republican views from office. The Democratic candidates will have the advantage, or the many advantages, coming into the 2008 election.

Currently, polls put Hillary Clinton in first place, by fairly large margins. Many merely want to see a woman in office, and this is Clinton’s first and most obvious advantage. Another obvious advantage is her publicity above all other candidates: she was the first lady, and has been one of the most prominent democratic senators in the time since then. Clinton also has husband Bill, who happens to be one of the most charismatic and well – liked politicians in recent times, and whose only ambition greater than being the first first man is to be president again. Hilary does not, however, have an advantage over other candidates, especially Obama, when it comes to Iraq. Her inconsistent approach has hurt her, and her unwillingness to focus the majority of energy on the issue does not sit well with anti – war voters, of which there are many.

In second place, according to polls, is Barrack Obama, the Illinois standout senator. Obama is very popular with younger voters, and is regarded as on of the more articulate and charismatic candidates on either the democratic or republican side. He has been the standout candidate on anti – war measures, and did vote against the war, something Clinton cannot say for herself. In addition, polls show Obama is ahead of Clinton on health care issues. One thing Obama has going against him is his lack of a strong statement on homeland security, which some analysts believe is even more important than Iraq in the election. Clinton, on the other hand, has pulled ahead of Obama on this issue.

A distant third place goes to 2004 vice president candidate John Edwards, followed by a much more distant Bill Richardson. Edwards focuses on the economy more than any other of the four, and this could prove very valuable to the survival of his campaign. Edwards has not, however, been strong on Iraq, where he focuses too much energy and is too inconsistent in his approach. Richardson, however, is strong on Iraq in the sense that he is known for his opposition to the war; this is the most important issue for Richardson to focus on, and is his greatest strength. Richardson’s weakness is most likely in his lack of publicity and funds, and has too much of an uphill battle to fight to really be a serious threat to the top two candidates.

Hilary seems to have the upper hand on Obama currently. Her strength in the field of homeland security may prove too much for Obama. That, along with husband Bill, may win her the nomination.