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 offence 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.

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

The State of Nature has a Law of Nature to govern it, which obliges everyone: And Reason, which is the Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions

John Locke, Second Treatise of Government. 1690

        “We hold these truths to be self-evident, that all men are created equal, Read more

Guest Essayist: Jeffrey Reed, former Constitutional Law Professor, Western Kentucky University, Bowling Green, Kentucky

On March 6, 1857, the United States Supreme Court handed down a ruling that would forever tarnish its reputation and that would help ignite the fires that led to the Civil War. That decision, Dred Scott v. Sandford, 60 U.S. 393 (1857), held that African-Americans were not United States citizens and that the federal government had no power to regulate slavery in territories acquired after the creation of the United States.

The facts leading to the decision are a bit convoluted, but necessary to understand the case. Dred Scott was born a slave in Virginia. Read more

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

The Missouri Compromise

William C. Duncan, Director of the Marriage Law Foundation

In our day, it is common, indeed expected, for the United States Supreme Court to strike down laws passed by Congress as unconstitutional. In the first decades of the United States, however, this was an exceedingly rare practice. In fact, in 70 years, the Court struck down only two federal laws as unconstitutional. The second of these was the Missouri Compromise.

The Compromise was legislation that arose out of a controversy about extending slavery into the northern parts of the territory acquired during the Louisiana Purchase.  The legislation “admitted Missouri as slave state but otherwise prohibited slavery Read more

Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

The Northwest Ordinance–adopted in 1787 by the Congress of the Confederation and passed again by Congress in 1789 after the ratification of the U.S. Constitution to govern the Northwest Territories which included modern day Ohio, Indiana, Illinois, Michigan, and Wisconsin–is undeniably an ordinance that inherits and extends the common law tradition. This means property rights take center stage and due process of law is established as a means of protecting property rights and the rights constituent to property such as life and liberty. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

On July 4, 1776, the Continental Congress, after months of preparation and weeks of political wrangling, announced that it had adopted an independence declaration. That document was written by Thomas Jefferson and substantially revised (“mangled,” according to Jefferson) by the Congress. Due to his other obligations, Jefferson had little time to spend on this task. Fortunately, he had composed his Summary View of the Rights of British America just two years earlier, from which he could draw much of the substance of the new document.

The Summary View resonates quite differently from the petitions, remonstrances, and declarations of a decade earlier. Read more

Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

After the Civil War came the Reconstruction Amendments.  Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence.  The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.”  The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery.  While the 13th Amendment prohibits de jure slavery and the 15th Amendment secures voting rights, the 14th Amendment is as a guaranty against de facto slavery.

The Constitution of 1789 contained a few key limits on state action.  No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war.  Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen.  Every state was guaranteed a Republican form of government.

States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution.  The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples.  This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government).  The 14th Amendment fundamentally changed this.

Section 1 of the 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship.  The privileges and immunities clause placed alien and resident persons in a state on equal footing.  The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state.  Additionally section 2 of the 14th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.

As a federal guaranty of certain rights, the 14th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees.  That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.

Judicial construction of the 14th Amendment has changed over time and with it the direction of federal influence over state affairs.  Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937).  Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups.  Through 14th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”

Also through the 14th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions.  For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives.  And there is Roe v. Wade (1973), a 14th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states.  These last two cases raise an important question.  Was the 14th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance

May 6, 2012

Essay #56

Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College

Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What Is “Due Process of Law”?

Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.

But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

April 27, 2012 

Essay #50 

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

“…Right to confront your accuser…”

Perhaps more so than any other provision, the 6th Amendment’s confrontation clause is one of the greatest criminal justice protections of the Constitution.

While many Americans today may not be aware, there was a time when trials didn’t operate with the protections that we rely upon today.  Consider the trial of Sir Walter Raleigh.  Well known for promoting tobacco in England, he was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer.

In 1603, Sir Walter Raleigh was arrested and accused of treason against King James.  Raleigh was allegedly one of the primary conspirators of the so-called “Main Plot,” an effort to end the rule of King James an install his cousin in his place.

The trial was held in the Great Hall of Winchester Castle and the primary evidence relied upon by the crown was the signed confession of Henry Brook, the Baron of Cobham. Throughout the trial, Raleigh requested that Baron Cobham be called in to testify so that he might demonstrate the falsity of the claims, “[Let] my accuser come face to face, and be deposed. Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!”

Even though criminal law prevented the use of so called “hearsay” evidence, the crown’s tribunal refused to compel Baron Cobham’s testimony.   Without the ability to publicly force the baron’s testimony or to challenge his veracity, ultimately Raleigh was found guilty and imprisoned in the famous Tower of London.

This experience was a powerful one for the colonists coming to America and would significantly influence the contours of the 6th Amendment.

The modern Supreme Court has made it clear that the “Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish.”

The power of the government to use its resources to accuse, indict and try an individual is considerable.  The framers understood this concern and therefore provided for a means whereby the individual could have the ability to limit the impact of the government’s power in this arena.   The confrontation clause explicitly places a limit by requiring that evidence be presented by a bona fide witness capable of being “cross examined” or challenged on the witness stand.

Thus instead of unknown witnesses or unidentified individuals presenting allegations secretly to convict a person, the confrontation clause requires not only that the government identify those individuals as part of the trial, but to also allow the defendant to rebut or challenge any evidence they attempt to present.

Typically the confrontation rule requires that this occur in open court.  This rule not only applies to witnesses, but also to any written documentation or other types of evidence that the government may wish to present in a trial.  In other words, not only must a homeowner – who was an eyewitness — submit to “cross examination” in a burglary trial, any finger print or blood evidence must also be subject to a challenge by experts in finger print and forensic science.

Normally, evidence is testimonial, that is there is a person making the statement which is considered by the judge or jury and he or she must generally be available for cross examination.  While there may be an exception for a circumstance wherein the witness is unavailable, generally speaking the defendant must have had a prior opportunity for cross-examination of the witness before that testimony is allowed.

Furthermore the confrontation clause is one of the reasons that so-called “hearsay” evidence is limited in court.  Hearsay simply covers the type of information that may prove useful for a trial that is presented by someone other than an eyewitness about information that typically only the eyewitness could recount.  Because of the confrontation clause, even the limited evidence that is allowed to be presented under hearsay exemptions still must be presented by witnesses that can be challenged.  For example, a so-called deathbed confession may be allowed to be entered as evidence.  However the person or document presenting the evidence must be capable of being challenged regarding their motive or accuracy etc.

Without the confrontation clause, a valuable right would not exist that protects individuals against the power of the state. Per the terms of the confrontation clause, Ex Parte or out of court statements are generally not allowed, defendants are guaranteed the right of “personal examination” of the witness, the witness must testify under oath, and the jury must be allowed to observe the demeanor of the witness in making his statement.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

Please leave your thoughts & comments on this essay topic by clicking the “comment” hyperlink below! Blog w/us!

March 28, 2012

Essay #28

Guest Essayist: Michelle Griffes, Manager of Programs and Curriculum Development at the Bill of Rights Institute


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.

Movies and television shows have popularized Fifth Amendment protections like “grand jury indictment,” “double jeopardy,” “pleading the Fifth,” and “due process,” but do Americans truly know what these clauses protect? Do Americans understand what their lives would be like without the protections of the Fifth Amendment? In order to explain the Fifth Amendment in its entirety, we will explore each of the five clauses of the Fifth Amendment, the basic history of the clause, and the protections provided by the clause.

The first clause in the Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” According to the Handbook for Federal Grand Jurors, a grand jury hears evidence against an accused person from the United States Attorney or Assistant United States Attorney in order to determine whether he or she should be brought to trial. The U.S. Attorney then has to approve the indictment as a check on the grand jury. [1] Grand juries were first recognized in the Magna Carta in 1215. As British subjects moved to North America,, they brought English common law practices, including grand juries, with them. Eventually, indictments for capital crimes by grand juries were ensrhined in the Bill of Rights.

The second clause in the Fifth Amendment states: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is commonly known as “double jeopardy” and prevents a defendant from being charged for the same crime after acquittal, conviction, certain mistrials, or multiple punishments. The portion of the clause that refers to “life and limb” is derived from the possibility of capital punishment. [2] Protections against double jeopardy can be found as far back as the Old Testament and ancient Roman law. [3] Double jeopardy can be complicated by the differences between criminal and civil cases and state and federal cases. O.J. Simpson, for example, was acquitted in a criminal murder case, but he was found guilty in a civil case. Hate crime statues also challenge double jeopardy protections, with some arguing that trying defendants for a hate crime after acquittal in a criminal case constitutes double jeopardy.

The Fifth Amendment also promises: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” This is the famed “pleading the Fifth” assertion we often hear in American vernacular. The clause protects individuals from answering questions or making statements that might be used as evidence against them. [4] This protection was expanded outside the courtroom with the United States Supreme Court case Miranda v. Arizona, 1966. The Court ruled that the self-incrimination clause also applied in police interrogation. [5]

“[No person shall] be deprived of life, liberty, or property, without due process of law” is the fourth clause of the Fifth Amendment. Due process was first protected under the Magna Carta in which King John promised that he would act in accordance with the law through procedures. The U.S. government provided for due process rights in the Fourth Amendment and in the Equal Protection clause of the Fourteenth Amendment. In order to ensure justice, established procedures must be followed before depriving people of life, liberty, or property. These procedures include the rights to a speedy jury trial, an impartial jury, and to defend oneself. [6]

Property is first mentioned as part of the due process clause of the Fifth Amendment, but private property is mentioned again in the final clause. The clause states, “nor shall private property be taken for public use, without just compensation.” If the state or federal government decides to take private property for public use, they must compensate the owners for that use. This is known as the “takings clause” or “eminent domain.”[7] Supreme Court has held that just compensation is measured by the current market value of the property. [8]

While Americans may hear about the Fifth Amendment protections regularly, they may not really understand the specific rights enumerated in each clause. The Fifth Amendment provides for grand jury indictments in capital crimes, protections against double jeopardy and self-incrimination, and protections of due process rights and just compensation for public use of private property. Each of these rights has a history in English common law or as far back as the Roman Empire, and the Founding Fathers believed that they needed to be explicitly provided for in our own government documents to ensure their protection.
1. Administrative Office of the United States Courts, Washington, D.C. “Handbook for Federal Grand Jurors.”

October, 2007.
2. Find Law. “Cases and Codes, U.S. Constitution: Fifth Amendment.”
3. David S. Rudstein. “A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy.” 14 Wm. & Mary Bill of Rts. J. 193 (2005),
4. Find Law. “Fifth Amendment Right Against Self-Incrimination.”
5. The Oyez Project. “Miranda v. Arizona, 1966”
6. Cornell University School of Law. “Due Process.”
7. Missouri Bar Center. “What is Eminent Domain?”
8. The Oyez Project. “United States v. 50 Acres of Land, 1984.”

Michelle Griffes is the Manager of Programs and Curriculum Development at the Bill of Rights Institute, an Arlington, Virginia-based educational non-profit. Michelle obtained degrees from Michigan State University in Public Policy and Olivet College in Elementary and Secondary Education. The Bill of Rights Institute teaches students about the Founding Documents through teacher professional development seminars, curriculum production, and student programs including the annual Being An American Essay Contest.

Please leave your thoughts & comments on this essay topic by clicking the “comment” hyperlink below! Blog w/us!

March 21, 2012

Essay #23

Guest Essayist: Gordon S. Jones, Utah Valley University

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.

“…nor shall private property be taken for public use, without just compensation.”

The power to take private property is not one of the “enumerated” powers set forth in the Constitution. But as a practical matter, one of the things that makes a government a government appears to be the power to take property. That right is called “condemnation,” or the power of “eminent domain.”

The theory is that without government, any private property is subject to confiscation by anybody stronger. Governments (and especially ours) exist to protect property from such arbitrary takings. The Declaration of Independence identifies “life, liberty, and the pursuit of happiness” as among the “inalienable rights,” but the Founding Fathers, relying on English theorist John Locke, understood “happiness” to include the right to private property. Early uses of this phrase actually say “life, liberty, and property.” Alexander Hamilton described “the security of property” as one of the primary purposes of government.

With the “takings” clause of the Fifth Amendment, Founding Father James Madison was only trying to provide property owners with at least the assurance that proper procedures would have to be observed in takings, and that owners would at least get something for their loss.

There are a number of concepts that need to be explored in understanding the Takings Clause: what is a “taking,” what is “public use,” and what is “just compensation”?

If the government takes your farm and builds a military base on it – occupies it – that is obviously a “taking.” But what if you own property on top of a mountain, and you want to build five houses on it that you can sell for $1 million each. Government tells you that you can only build one house there, and that house will sell for only $1.5 million. Has the government “taken” $3.5 million from you?

If a Forest Ranger discovers a spotted owl nesting in your tree farm, you may not be allowed to cut the trees. Has government “taken” the value of the timber?

These are the kinds of questions governments and courts ask in deciding whether property has been “taken.” It would be nice to think that, after more than 200 years, we had clear answers to these and similar questions, but the fact is, we don’t. One Supreme Court Justice said that government could impair the value of property by regulation without paying compensation as long as it didn’t go “too far.” Not exactly the clearest standard.

What about “public use”?

If your county government takes your property and builds an airport on it (or a school or hospital), most would agree that the property had been taken for a “public use.” On the other hand, what if the property was taken and sold to a private developer who built an office building on it? Would that be a “public” use? Probably not, but if the property were in a run-down (“blighted”) area of town, and the development eliminated a row of crack houses and re-vitalized the economics and livability of the neighborhood, the courts might find such a taking justified (and therefore constitutional).

Again, you might think that there is a lot of “wiggle room” in these judgments, and you would be right. Some years ago, the State of Hawaii forced private landowners to sell their land to tenants. The Supreme Court upheld the forced sales as being for a “public use.” We might think such a judgment obviously wrong, but we might change our mind if we knew that in Hawaii at that time 72 owners had inherited from ancient times more than 90 percent of the private land in the islands.

A more questionable case occurred in 2005, when the city of New London, Connecticut took several private homes and sold them to a private developer for an office building. There was no question of “blight” in this case, but the city argued that it would get more tax revenue from the office building than it was getting from the private homes, so that the “public” would benefit. This case (Kelo vs. New London) generated a firestorm of opposition, moving many states to strengthen the safeguards on their eminent domain procedures. Critics of the Kelo decision argue that it has changed the words “public use” to the much looser “public purpose.”

Finally, what is “just compensation”? If the city wants to build a road across my property and offers me $1 million for it, I might consider that “just,” and be happy to take it. On the other hand, if my grandfather is buried there, no amount of money could tempt me to sell willingly.

Governments have set up procedures for determining what the “fair market value” is for any property subject to condemnation. These involve the use of real estate appraisers, economists, and planning forecasters. They also typically involve extensive negotiations, which can be expensive for a private landowner – so expensive that the landowner eventually gives up and gives in to the government, which has all the resources of the taxpayer to call on to finance its battle.

The right to own property is part of what the Founding Fathers called the “natural law,” one of the “inalienable rights” mentioned in the Declaration of Independence. The Constitution was written for the purpose of “ensuring” those rights, so we should be very suspicious of governmental power that infringes the enjoyment of property rights. But it is obvious that completely unfettered use of property by one person could infringe the rights of other property owners. At the present time, the system we use to reconcile conflicting – or potentially conflicting – rights is the power of eminent domain, hedged up, as it must always be, with the procedural safeguards guaranteed by the Fifth Amendment: that the “taking” be for a “public use,” and that it be accomplished by “just compensation.”

Gordon Jones, a long-time policy analyst in Washington, studied constitutional Law with Robert Horn at Stanford University, has his Master of Philosophy in Political Science from George Washington University, and teaches Law and Politics at Utah Valley University.

Please leave your thoughts & comments on this essay topic by clicking the “comment” hyperlink below! Blog w/us!

March 20, 2012

Essay #22

Guest Essayist: J. Eric Wise, partner at Gibson, Dunn & Crutcher LLP law firm

In that funny movie, Monty Python and the Holy Grail, a woman is tried for the crime of being a witch by placing her on a scale to see if she weighs more than a duck.  Laugh now.  In 9th Century England, procedure was scarcely better.  Commonplace were absurdities such as the “ordeal,” where guilt or innocence might be determined by burning the accused with boiling water or a hot iron, trial by battle – including the use of retained champions – and “compurgation,” the testing of witnesses by a ritualistic chain of oaths which if completed proved innocence or if broken proved guilt.

In 1215 English nobles forced King John to place his seal on the Magna Carta at Runnymede.  That document stated in clause 39 “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.”  It was not until 1354 that clause 39 was re-codified, including “due process of law” in lieu of  “save by the lawful judgment of his peers or by the law of the land.”

The Constitution originally had no bill of rights.  Federalists argued a bill of rights was more appropriate to an all-powerful monarch, subject only to enumerated rights, than to a limited government, having only the powers vested in it by the people.  Yet, to co-opt the opposition, James Madison introduced in the First Congress a bill of rights.  Embedded in the Fifth Amendment are the words “nor shall any person be deprived of life, liberty or property without due process of law.”

“No, no!” said the Queen in Alice in Wonderland.  “Sentence first — verdict afterwards.”  Due process is in the least a guaranty of procedural fairness. As such, due process includes, inter alia, prohibitions against vagueness, the right to notice and a meaningful hearing at a meaningful time, and decisions supported by evidence with law and findings of fact explained.  Exigencies and circumstances affect the extent of procedural requirements through balancing tests.  In circumstances requiring emergency injunctive relief, minimal notice, if any, is required.  Due process is not the same as judicial process.  Citizen affiliates of Al Qaeda beware, the executive may kill you without a trial.

Substantive due process is perhaps of a more controversial sort.  Under the doctrine of substantive due process, the clause implies unwritten rights denying, in certain circumstances, the power to enact legislation – or otherwise act – to deprive life, liberty or property even with fair procedural application.  Legislation that the judiciary finds inherently arbitrary may be voided on substantive due process grounds.

Readers of the Declaration of Independence know that super-legal rights do self-evidently exist and are the source of the authority of the people to govern themselves, but it is hardly a straight path from A to B that it is the role of the judiciary to give natural rights expression as positive law.  Further, substantive due process proponents nowadays do not hang their hat on a natural rights peg.  Compare the language of Justice Samuel Case in Calder v. Bull (1798) regarding the “principles of the social compact” to that of the “penumbral rights” of Griswold v. Connecticut (1965).  In any event, both supporters and detractors alike would be disingenuous to deny that this second sort of “due process” vests somewhat breathtaking power in the judiciary, and raises the critique that by substantive due process legislation may be made without legislative process.

It is important to remember that the due process clause of the Fifth Amendment restricts only federal power.  Consequently, since the ratification of the Reconstruction Amendments, applications of substantive due process under the Fifth Amendment have been limited to hard to scratch places where the due process clause of the Fourteenth Amendment does not reach, such as the territories and the District of Columbia.  It would not be fair, however, to deny substantive due process under the Fifth Amendment some negative attention it deserves.  Perhaps the first Supreme Court case to dive deeply into the waters of substantive due process was Dred Scott v. Sandford (1857), in which, through layered and abominable errors of reasoning, Justice Taney found in the due process clause of the Fifth Amendment a right to property in other human beings that barred Congress from prohibiting slavery in the territories.

March 19, 2012 

Essay #21 

J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.

Please leave your thoughts & comments on this essay topic by clicking the “comment” hyperlink below! Blog w/us!


Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

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,, Christian Science Monitor,, Washington Times and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun.

March 16, 2012 

Essay #20 

Guest Essayist: Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

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.


[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.–  U.S. Constitution, Fifth Amendment.

What are the purpose and origin of that constitutional protection?   “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity… as well as enhancing the possibility that even though innocent he may be found guilty.  In accordance with this philosophy… a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ … Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. U.S., 355 U.S. 184, 188 (1959).  (citations omitted.)

The importance of the double jeopardy protection is obvious.  But its applications raise technical questions.  For example, as the Supreme Court of the United States ruled, “[I]t is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge…. A defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again…. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.  At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances… arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’…. [A] defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.”   Green v. U.S., 355 U.S. 184, 187-88 (1959) (citations omitted).

The United States Constitution created a system of dual sovereignties, federal and state.  The protections of the Bill of Rights, including the protection against double jeopardy, were originally intended to bind only the federal government, the government of the United States.  Barron v. Baltimore, 32 U.S. 243 (1833).  For protection of their liberties against infringement by state governments, the people relied on guarantees in their state constitutions.  Thus the Supreme Court, in Palko v. Conn., 302 U.S. 319 (1937), declined to apply the double jeopardy protection strictly against the states.  Three decades later, however, the Supreme Court reversed that restriction on account of what it described as the “fundamental” character of that protection: “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ … the same constitutional standards apply against both the State and Federal Governments…. The fundamental nature of the guarantee against double jeopardy can hardly be doubted.  Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence….As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries…. Today, every State incorporates some form of the prohibition in its constitution or common law.”  Benton v. MD, 395 U.S. 784, 795 (1969) (citations omitted).”

The protection against double jeopardy is limited by the federal character of our constitutional system.  “[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each…. [T]he double jeopardy… forbidden [by the Fifth Amendment] is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.  Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy.”  U.S. v. Lanza, 260 U.S. 377, 382 (1922) (citations omitted).

A criminal assault under state law may also be a separate civil rights violation under federal law if the prerequisites of racial or other elements are present.  When, however, two different units of government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense.  Waller v. Florida, 397 U.S. 387 (1970) (trial by a municipal court bars a trial for the same offense by a state court.)  The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct.  Heath v. Alabama, 474 U.S. 82 (1985) (where defendant crossed the state line in committing a kidnap murder, he could be prosecuted for murder in both states.)

The clause generally has no application in noncriminal proceedings.  Helvering v. Mitchell, 303 U.S. 391 (1938).  But the protection against double jeopardy can apply to the imposition of sanctions that are civil in form but that constitute “punishment” in their application.  Breed v. Jones, 421 U.S. 519 (1975) (juvenile court proceedings); U.S. v. Halper 490 U.S. 435 (1989) (imposition of a civil penalty under the False Claims Act triggers protection against double jeopardy if the penalty is very disproportionate to compensating the government for its loss and is obviously intended for retributive or deterrent purposes).  Because a main purpose of the double jeopardy clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, an exception to the general rule prohibiting appeals from nonfinal orders.  Abney v. U.S., 431 US 651 (1977)

In summary, the double jeopardy protection is truly fundamental.  That basic character should not be obscured by the necessity of making technical distinctions in its application.  Those distinctions, based on procedural or federalist factors, attest instead to the necessity of preserving the fundamental character of that protection not merely in general but in all of its applications.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

March 15, 2012 

Essay #19 


Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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 1999 movie Double Jeopardy, starring Ashley Judd and Tommie Lee Jones, focused on a wife who was wrongfully convicted of murdering her husband who had staged his own killing. One theme suggested by the title and by some scenes of prison lawyering is that, having once been convicted of murder, the wife could not be tried again if she now murdered her husband. Hardly.

The protection against double jeopardy is deemed a fundamental human right with a tradition well-entrenched in Western Civilization going back at least to ancient Roman law. The doctrine was part of the English common law long before the Constitution, although, curiously, express double jeopardy protections were not well-represented in the early state constitutions or in the proposals for amendments submitted by the state conventions that ratified the Constitution. Incidentally, the phrase “life or limb” today is read as “life or [physical] liberty,” since drawing-and-quartering and other punishments that produce corporal maiming have gone out of style and would likely constitute “cruel and unusual punishment” in violation of the 8th Amendment.

In Green v. U.S. in 1957, the Supreme Court justified the doctrine as reflecting

“the underlying idea…that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

On that last point, if the state gets numerous turns at bat, it only needs to be successful once, which produces significant incentive to try repeatedly. At the very least, such tactics will cause more defendants, emotionally and financially exhausted and faced with the deeper resources of taxpayer-funded prosecutors, to enter factually dubious guilty pleas.

The clause raises several questions. First, when does jeopardy “attach”? Second, what exactly can the government not do? Third, what exceptions are there?

Jeopardy attaches when a jury is empanelled and sworn. If the trial is to a judge only, it attaches when the first witness is sworn. If there is a guilty plea, it attaches when the court accepts the plea. An acquittal by the judge or jury bars the government from appeal because a retrial for that offense would violate the double jeopardy rule.

Notice that the government cannot retry the offender for the same offense. What if a defendant is acquitted of robbery, which combines larceny (taking and carrying away another’s personal property without consent and with the intent to deprive him of the property permanently) and assault (intentionally creating a reasonable apprehension of immediate bodily injury)? Can the prosecutor now seek to try the defendant for larceny and/or assault arising out of the same criminal act? The common sense reaction is “no.” That is also the legal stance, because two crimes constitute the “same offense,” unless each of them has at least one additional element that is different from the other. Here, while robbery has a different element than either larceny or assault (since it is a combination of the two), neither larceny nor assault has any additional element from robbery. A prosecutor who has failed in a prior trial cannot proceed against the same defendant for a “lesser-and-included” offense.

Likewise, a prosecutor who, for example, successfully prosecuted a defendant for larceny and has that conviction under his belt subsequently cannot roll the dice again and seek to try that defendant for the greater crime of robbery out of the same transaction. The lone exception to that rule is that a prosecution for battery (unlawfully using force against another that causes bodily injury) does not bar a subsequent trial for murder if the victim eventually succumbs to his wounds from the attack.

While the rule gives defendants some basic and significant protections, it is also riddled with exceptions and qualifications. In that vein, a hung jury is no bar to retrial. Neither are certain motions for mistrial by the defendant where the mistrial is not caused by prosecutorial misconduct. For example, conditions arise that make a continuing fair trial impossible in that location. There is also generally no violation of double jeopardy for a retrial if the defendant appealed and was successful in overturning the earlier verdict, or if the prosecution successfully appealed a trial court dismissal of the case when there was no acquittal but the trial court based its decision on a legal motion.

Significantly, double jeopardy does not apply to non-criminal proceedings. A public official who is impeached and removed from office for a crime can also be prosecuted for that act under the criminal law. In similar vein, a defendant who is convicted or acquitted in a criminal trial can be sued by the victim for a civil wrong. A notorious example of that is the former football star and advertising pitchman O.J. Simpson. Despite his acquittal of murder charges for the killing of his estranged wife and another victim, he was subsequently found liable for civil damages for “wrongful death.”

Returning to our movie, yet another exception shows the lack of reliability of jailhouse lawyering (or of Hollywood screenwriters). The double jeopardy clause does not apply to different sovereigns. Conviction or acquittal under the laws of one sovereign does not bar a different sovereign from prosecuting the defendant under its law for the same charge arising out of the same conduct if the conduct affected that sovereign. Although they usually avoid duplication, the state of California could prosecute a drug dealer for violation of its drug laws and then turn the perpetrator over to the federal government for prosecution under federal drug laws. A version of that was the 1993 federal prosecution of four Los Angeles police officers for violation of federal civil rights laws arising out of the use of excessive force in arresting Rodney King in 1991. The officers had mostly been acquitted in a 1992 state prosecution arising out of the same incident.

The legal assumptions of the movie are flawed. Being wrongfully convicted of murder may entitle the defendant to civil damages from the government. But it does not create a dispensation from prosecution for a subsequent murder. The Constitution has no “get-out-of-jail-free-for-murder” coupons to be redeemed as the occasion demands. More pertinent, had Louisiana prosecuted the movie’s protagonist for the murder of her husband, the prior prosecution by the state of Washington would not have placed her twice in jeopardy of life or limb for the same offense.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

March 15, 2012 

Essay #19 

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

The Right to a Grand Jury

The grand jury occupies a unique place in our justice system.  It does not prosecute, but the power of a federal prosecutor depends on the grand jury.  It does not judge, but it can expose or shield defendants from judgment.  It can protect citizens against baseless prosecution, but the reasons for its decisions are shrouded in secrecy.  The grand jury originated in medieval and monarchist England, remained important enough at the Founding for the Framers to enshrine it in the Fifth Amendment, but today grand juries are only employed in the United States.

A grand jury consists of 16 to 23 members.  The United States attorney (the prosecutor in federal criminal cases) presents evidence to the grand jury for them to determine whether there is “probable cause” to believe that an individual has committed a felony and should be put on trial. If the grand jury decides there is enough evidence, it will issue an indictment against the defendant.

The grand jury conducts its work in secret. Jurors cannot be required to explain to anyone, even the courts, why the proceeded in a case. Ideally, secrecy protects against a defendant fleeing the jurisdiction.  It allows for free deliberations without threat or pressure from outside.   It also discourages witness tampering.   And finally, if the jury finds probable cause is lacking, the accused individual suffers no loss of reputation.

Grand juries possess broad powers of inquiry. They have subpoena power, and can compel testimony by providing immunity.  At the same time, their proceedings are not adversarial.  The jury is not assessing the guilt or innocence of any person.

As the Supreme Court stated, ”it is axiomatic that the grand jury sits … to assess whether there is adequate basis for bringing a criminal charge.” U.S. v. Williams, 504 U.S. at 51.

The insular quality to grand juries has provoked criticism.  Because the prosecutor is the one official present during deliberations, critics complain that grand juries can become a rubber stamp — aiding unscrupulous or ambitious prosecutors, who may be pursuing interests hostile to the administration of justice.  While the grand jury is enshrined in the Constitution, Congress has the power to amend the rules by which juries are run.  For instance, Congress could require prosecutors to present any evidence exonerating a defendant, give a defendant the right to appear before the jury, or guarantee a counsel’s assistance for any defendant or target of an investigation.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

March 14, 2012 

Essay #18 

Guest Essayist: Richard Brookhiser, Author, James Madison
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”

In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.

So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.

There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).

But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.

Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.

The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.

Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.

February 21, 2012 – Essay #2


Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Amendment IX

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment.  And that’s just what James Madison and the Framers intended.

The Ninth Amendment is that rare creature in American politics, a success story conceived in humility.  The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others.  Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish.  Instead, they added a caution, by way of an afterthought.  The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.

The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers.  The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned.  Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision  – ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?”  But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance.  The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct.  On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.

That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion.  For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920).  Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment.  Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract.  For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.

Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments.  Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, .

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense.  Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment.  Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another.  Capital punishment, the Court once opined, is applied too haphazardly.  When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not.  However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around.  Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant.  On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty).  After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas.  Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated.  Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him.  The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked.  In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

Amendment VI


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Perhaps more than any other Amendment, the 6th Amendment protects the liberties of the American people most directly.  It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.

By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media.  Prior to the adoption of the 6th Amendment, these protections didn’t exist for large parts of Europe and Asia.

There are seven elements of the 6th Amendment:


Speedy Trial:  As recognized by the Supreme Court this provision has three obvious benefits to the accused

  1. To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
  2. To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
  3. To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.


Public Trial: Under its terms the trial must be open to the public and accessible by the media.  Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.

Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision.  Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury.  No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice.  They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.

Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual.  The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge.  Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.

In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes.  They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.

Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system.  A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court.  If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person.  Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.

Counsel:  Perhaps the most meaningful of all of the 6th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case.  While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice.  As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government.  At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense.  In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice.  Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.

The 6th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government.  The founders were quite familiar with the list of abuses by the English monarch.  It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.

Marc S. Lampkin is a Vice President at Quinn Gillespie

Guest Essayist: Andrew Langer, President of the Institute for Liberty

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 offence 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.

Amendment V to the Constitution, among longest in the Bill of Rights, is also one of the richest in terms of content.  A transitional amendment, it is unique in that it encompasses restraints on both criminal and civil powers of government—transitionally linking the two.  The first half of the amendment serves as the bedrock of protections for accused individuals under the criminal code, while the second half lays out the bedrock principles underlying private property rights.

Americans are all-too familiar with the criminal elements within the 5th Amendment.  These were borne out of the principles of English common law, stemming from the Magna Carta—principles that the revolutionary founders had seen eroded by the Crown prior to and during the War for American Independence.  Given the tremendous difficulty many of the founders had in seeing power concentrated in a single federal government, they felt it important enough to further constrain those powers and enshrine basic protections to accused persons within the Bill of Rights.

The assurance of a grand jury indictment before trial, the assurance of not being subjected to perpetual trial should the government not achieve a guilty verdict, the assurance of not being made to testify against oneself, these all had roots in English common law—very basic rights that represent a check on government power run amok.  The idea of the grand jury process helps to ensure that a single government official cannot arrest an individual without merit.

The prohibition against “double jeopardy” insures that these same government officials cannot hold an individual in perpetuity, for multiple trials, when a jury of his or her peers has found them not guilty of a particular crime.  And the prohibition against self-incrimination is a recognition of the dignity of the individual in not being forced to act against his own interest in self-preservation and liberty.

The statement on due process really forms the transition between civil and criminal in the 5th Amendment.  In terms of criminal jurisprudence, obviously an individual accused of a crime must be afforded some fair process by which his case is heard, ensuring that his team is able to amount a fair defense.

But then the 5th Amendment grabs onto a core value of the American founding:  the importance of private property rights.  Having its basis in John Locke’s theory that government’s role is to protect life, liberty, and property, Jefferson has originally written that our inalienable rights were life, liberty, and the pursuit of property.  Private property undergirds the foundation of the Republic—scholars such as Hernando DeSoto have written that property rights are essential to the stability and prosperity of any free society.

As it happens, it is these rights that have come under the greatest siege in the last century and a half—eroded in an incredible number of ways, largely because they are the among the least understood rights.  As it happens, the Bill of Rights sets out very simple protections.

Government has the power to take private property from people.  We cede that power to it in the 5th Amendment.  But three things have to happen in order for that “taking” to be lawful:

  1. First, the taking has to be for a “public use”. Traditionally, this was for things like public buildings, roads, even public spaces like parks;
  2. Due Process has to be accorded to the property owner.  They have to be given a fair hearing or process by which they can negotiate with the government, perhaps to avoid the taking entirely;
  3. Should 1 and 2 be satisfied, “just” compensation has to be paid to a property owner, generally what a willing buyer would pay to a willing seller.

For many years, litigation and legal debates arising under the 5th Amendment’s property rights provisions centered on what constituted a taking and whether or not property owners had been afforded due process—and at which point a landowner could seek compensation from the government.

A government need not physically occupy or affirmatively confiscate property, either.  As government has grown, the reach of that government into the daily lives of property owners has similarly grew—and the concept of “regulatory takings” was made manifest.  In the seminal 1922 Supreme Court case of Pennsylvania Coal v. Mahon the High Court stated clearly that when a regulation goes “too far” it will be considered a taking, triggering the 5th Amendment’s requirements.

Thus, under laws like the Clean Water Act and the Endangered Species Act, when a piece of property is restricted from substantially all uses, the landowner can seek just compensation for the taking of his property under the 5th Amendment.

What has come to the forefront in recent years is the long-time debate over what constitutes a “public use”.  In the 2005 Supreme Court case, Kelo v. City of New London, the High Court ruled that the home that elderly Suzette Kelo had lived in since she was a girl could be taken by the City of New London, CT to make way for a parking lot for a Pfizer manufacturing facility.

The public outrage was palpable—after all, the taking would directly benefit a private entity, the Pfizer Corporation, and not constitute a “public use” as stated in the 5th Amendment.  People wondered how the Supreme Court could have ruled this way.

The problem was that this decision was the end-result of 130 years of Supreme Court erosion of the “public use” doctrine.  Starting with a line of cases in which the High Court ruled that it was appropriate for government entities to take private property for quasi-private/quasi-public utility companies, and leading into years of cases in which the court decided that it was OK for localities to condemn wide swatches of private property in the name of urban redevelopment, we were left with an entirely different interpretation of “public use”.

By 2005, the Supreme Court’s precedent said that so long as there was a nebulous “public benefit,” the Constitution’s requirement of a taking for “public use” was satisfied.  Generally, this means that if there is a net increase in a city’s tax rolls, the 5th Amendment is satisfied.

The problem wasn’t that the High Court was making new law in Kelo.  The problem was that the High Court didn’t have the courage to over-rule years of bad law.

The 5th Amendment’s property rights protections are constantly under siege.  If we hope to keep the Republic, we must defend those protections earnestly and vigorously.

Andrew Langer is President of the Institute for Liberty

Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . .  which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states.  Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.

[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142


Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.