Wednesday, July 15, 2015

Taking (a shot at) The Fifth Amendment

This is the fifth in a series of pieces contemplating the Bill of Rights and its implications and consequences in a free society that has existed for over two hundred years protected and guided by its precepts.

Today we continue our Bill of Rights musings with the Fifth.  I will set aside as quickly as possible the puns and humorous comparisons.  Yes, I have never had to testify to where I had to be concerned about incriminating myself, I've had a pretty ordinary life.  I've diminished a lot of fifths, being a professional and casual singer for many decades.  I've diminished a much smaller number of the other kind of fifths, especially since college.  Never was that much of a drinker.

OK, puns aside.  Let's take a look at the Fifth Amendment in its original text:   

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.

So while we have in our mind that the Fifth Amendment is the one that Lois Lerner pleads when she's trying to avoid admitting to Congress that she abused the living heck out of her position, there's more:
-- Capital crimes (in civilian settings) need a Grand Jury to decide if there is evidence to hold a trial
-- No one can be tried for a crime after being acquitted of it once
-- No one shall be forced to testify against himself
-- No one shall be executed, enslaved or have property taken without due process
-- No government, Federal, state or local, can seize property for its own use without paying fairly.

Wow.  That's a lot of content and a lot of protection for one amendment.

So let's note a thing or two, especially in the context of the fact that the Framers chose to put this disparate set of rights, not all that contiguous, in one amendment.  First, it is not specific to actions of the Federal government at all.  In fact, the applicability of these rights appears to be predominantly associated with state and local governments -- capital trials, executions, self-incrimination.  The prohibition against uncompensated seizures applies in practice as much to Federal cases, and the due-process clause is common to all shapes of government.

The other is the double jeopardy text -- "put in jeopardy of life or limb."  I confess to a few things.  First, I hadn't memorized the Bill of Rights, so it shouldn't be a surprise that certain phrases in the text are going to surprise me.  The other is that no one pays me for this (though advertisers are welcome to contact me), so there is only a tiny bit of research that I'm willing to do.

Given that, I feel free to muse about the limitation of the double jeopardy clause to "life or limb."  By my reading of it, if you were charged in, say, Idaho, for an offense like embezzlement, and acquitted, the state could turn around the next day and try you all over again.  There is no capital punishment for embezzlement; the punishment is imprisonment and/or fines.  Even if you make the reasonable interpretation of "life or limb" to be "death or physical harm", you are not at that kind of risk of punishment for embezzlement.

Has that ever been tested?  Has a State or a local government ever pushed that issue?  You know, losing an acquittal in a non-capital trial and turning right around and trying again?  Would a jurisdiction with an axe to grind -- say, the State of Missouri pushing a politically-driven prosecution of the cop in the Michael Brown shooting for second-degree murder -- keep trying the guy, claiming that the prison term is not "life or limb"?  When that logically got to Federal court and the Supreme Court, what would they say?  Moreover, what would the rock-block left-wing four justices rule?

Of course, we all know the Fifth Amendment primarily for its protection against testifying against oneself.  But -- shall we look at the text and punctuation: "...  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; ..."  As I look at the punctuation, I'm noting where the commas and semicolons are.  And I did check several renderings of it to make sure the punctuation is clear.

What I see is that the protection from self-incrimination is not its own phrase, delimited as the others are by semicolons, but it is actually part of the subsequent text, the due process clause.  And as I read it, given that the government affords the person "due process" in a way that passes constitutional muster, it can indeed force someone to testify against themselves!

Don't you read it that way?  I mean, it is clear to me that testimony that could lead to self-incrimination can absolutely be demanded.

I'm ready for Congress to haul Lois Lerner back in front of the applicable committee and figure out something that passes for due process -- they're full of lawyers, that shouldn't be hard -- and then demand that she testify in the IRS scandal about targeting conservative groups.  She should then be told that she will be incarcerated until she testifies.

Again -- before we can blink, this one goes to the Supreme Court.  I don't know what kind of precedent resides in past case law on the Fifth Amendment, the self-incrimination phrase and the due process clause, but I can see some really interesting coalitions forming in the decision.  The Court is not supposed to look at the implication of its decisions, but this one is a Pandora's Box for sure.  I'd love to see how that one would turn out.

Of course, power corrupts, absolute power corrupts absolutely, and any government that can compel its citizens to testify against themselves may sail perilously close to the totalitarian state we so want not to be.

So the musing on the Fifth Amendment has wandered toward a few Supreme Court cases of interpretation that will never happen, but theoretically could.  If there is never to be such a case, I'd love for the justices to pour a good chardonnay, sit around a table and look at where the commas and semicolons are.  Maybe one will slap his or her hand against his or her forehead and say, "Holy crap, that's a comma!  What are we going to do with that?"

Maybe the chardonnay might have improved some of their decisions this year.   Or caused them.

 Copyright 2015 by Robert Sutton
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