March 16, 2012 – Essay #20 – Amendment V: Right Against Self- Incrimination – Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

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Amendment V:

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.

 

The 5th Amendment contains numerous, seemingly unconnected, components. However, there is a common theme. The common theme that runs throughout the amendment is liberty; it connects each of the components. The manner in which the amendment is constructed reflects the idea that the burden of proof falls on the government. In order to take someone’s life, liberty or property the government must adhere to a strict set of standards in trying to prove guilt or cause. Perhaps the most important of these is the protection against self-incrimination. The 5th Amendment states that an individual cannot be forced to testify against himself. The provision became well-known in popular culture when accused mobsters would commonly take the fifth when they were put on trial. But the provision has been around since at least the sixteenth century when torture and forced testimony was common practice.

In order to get a confession, or to get someone to testify against himself, officers of the law would torture someone or hold their family or property in custody until they signed a confession or took a pledge that confirmed their guilt. Of course, banning such practices was not enough as the practices were done in secret when they were outlawed, or outsourced to unofficial officers of the state where judges or barristers could plausibly deny the existence of such practices. The only way to make sure such reprehensible practices did not occur was to exempt people from being a witness against themselves. If a person could not be asked to witness against himself it wouldn’t do much good to torture him.

The provision increases the burden of proof on the government in criminal cases. A person cannot, during trial, be asked if they committed a crime. The government must prove the case against them. This may seem onerous and unnecessary but we should be quick to remember that the government can be as prone to misuses of power as individuals. This is but one additional check to make sure the government does not use its monopoly on force outside the bounds of law in a way that threatens the life, liberty, or property of individuals. Such a provision also bestows an increased level of legitimacy over judicial proceedings.

This provision, and perhaps this amendment moreso than any other, shows at what great lengths the First Congress went through to protect individual liberty. This provision shows that the government exists for the preservation of individual liberty, that individual liberty precedes government; and thus by extension, the primary purpose of government is to protect us, not to enhance itself or extend authority over us beyond what we grant it.

 

 

 

 

The mark of a good government, and of a people truly committed to the idea of liberty, is the degree to which they abide by procedures that make the deprivation of life, liberty, or property difficult. This must be true when we sympathize with the accused just as much as when find the accused to hold positions and values contrary to our own.

 

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, Washington Times and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun.

7 replies
  1. Marc W. Stauffer
    Marc W. Stauffer says:

    The idea that abiding by “procedures” is in part what protects our liberty is very true. I have served in local government as a City Councilman and as a Planning Commissioner, in County and regional committees and on State committees such as The Rural Policy Advisory Committee. How often I have heard complaints as to how government is so slow and have felt the public’s frustration. But, it is at times, that “slowness” is the result of following the procedures “We the People” have laid down in order to give the public time to react and comment before decisions are made…..many times preserving the public’s liberty.

    I found it very interesting how Dr. Scott has seamlessly connected the dots of procedures to our right to abstain from “tattling on ourselves” and thus preserve our liberty and force government to follow procedures that checks their “will power”. Excellent article! Thanks!

    Reply
  2. barb Zakszewski
    barb Zakszewski says:

    I never thought of the 5th Amendment in the way Dr. Scott presents. But when you think about, he is right. This amendment is basic to preserving our liberty and that is the reason why government exists..to protect our liberties. Not to trample on them or take them away if we do this or don’t do that. Too Bad our government now forgets all that. And if we allow the government, bit by bit, in the name of security or protecting us from ourselves to take away our liberty,very soon we will have none. “Eternal vigilance is the price of liberty”.. Always be aware, never become complacent!! Thank you for an excellent article and keeping us aware of our Great document, the Constitution!

    Reply
  3. Richard Martin
    Richard Martin says:

    The 5th Amendment also keeps faith with the Declaration of Independence. In fact, most of the Bill of Rights keep faith with the Declaration of Independence.

    Reply
  4. Linda & Halley
    Linda & Halley says:

    The right against self incrimination must surely have been thought about by the framers as a result of the gross treatment of individuals of all religious persuasions during the time of England’s Henry VIII. People refused to swear oaths or give testimony against themselves, under penalty of being burned, tortured or killed. Surely, one can draw parallels with Jesus, who in His time refused to answer Governon Pontius Pilate or the cheif priests and elders when accused. Linda
    Halley: Hey, let’s hear it for Amendment Five…you can’t try me for the same crime twice!”

    Reply

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