Insurrections often are propagated upon misinformation. So too are the most recent band of domestic terrorist who like to hide behind our most sacred American institutions. In this series, I want to explore the Bill of Rights and why some of the hype and hyperbole thrown around by the extremist is not just wrong but dangerously misguided.
Over the next several weeks, I will discuss the history of our constitutionally protected rights and why Congress chose to codify these and not others. I am not an attorney so I will not go into some of the legal aspects of these amendments, so please don’t ask me if your religious obsession for cordite is protected by Amendment 1 or Amendment 2. I plan to focus on why these amendments exist.
Today, I want to discuss Amendment 5:
Everyone who watches American police dramas on TV is familiar with the Miranda Act: “You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.” All this stems from concerns of the Fifth Amendment to the Constitution which 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, 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.”
Having just experienced a subversion of English Common Law during the America Revolution, the first Congress, especially the Anti-Federalist, were eager to put in safeguards against government tyranny. Immediately before and during the war, both Royal Governors and military officials frequently annulled aspects of English Law in order to punish their opposition. Colonial citizens had their property seized, were held without charges, were coerced into giving false confessions, and suffered all manner of judicial abuses. Congress placed five key protections into the Fifth Amendment specifically to ensure that these abuses would not be inflicted by the United States on its citizens:
Most of these protections have their origins in ancient law traditions. The roots of the Fifth Amendment in English law are in the late fifteenth and early sixteenth centuries when we saw the introduction of certain legal protections against the prerogative of the Crown. In medieval England it as common to demanded that subjects testify in criminal cases and become the instrument of their own condemnation. This happened not only in royal courts, but even in the courts of the justices of the peace. Some of these “demands” went even as far as torture. The rack and iron maiden in the Tower of London were installed by Royal officials were far more interested in promoting the cause of the Crown than in maintaining the norms of strict justice.
- No person can be held without formal charges or indictments
- No person can be tried multiple times for the same offense
- No person can be forced to assist in their own prosecution
- No person can be convicted of a crime without a trial
- No private property may be seized by the government without fair compensation
In the beginning there was little opposition to requiring the accused to testify against themselves. In fact, it was actually popular among the common people. After all, it was backed by the respected authority of a strong king. This all changes with Henry VIII and the religious turmoil that followed his break with the Roman Catholic Church. You see, affairs of the church and affairs of state in most of Europe were one and the same so these extralegal means of obtaining confessions were soon extended to any BELIEFS contrary to those of the Crown. This rift will ultimately lead to civil war.
With the accession of James I and the Puritan party’s petitions against the doctrine and ritual of the Anglican church this all came to open conflict. While Parliament against the church’s bishops using civil power to force conformity to Church doctrine, James responded with his assertions for the “divine rights of kings.” James would prevail but his successor Charles would not fair so well. By 1640, he was at war with the Scots (Jacobite); mobs prowled through London; and disorder was rampant. Gangs gathered outside the Court of the High Commission, shouting, “No bishops, no High Commission.” Parliament was forced to concede that church courts (and hence all courts) could “not proceed against criminals but with the consent of their presbyters, and upon the testimony of several witnesses.” Returning English Common Law to the standards set forth four hundred years earlier in Magna Carta but extending these rights to not just noblemen but ALL Englishmen.
Given this history it’s easy to see why Eighteenth-century Americans viewed the right to a jury trial as one of the essential liberties of a free country. They saw the jury as an independent deliberative body that could refuse to cooperate with an unjust court or law.
The Double Jeopardy clause, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” as equally nebulous origins but can be dated all the way back to the Code of Hammurabi. Restrictions against repeatedly bringing someone to trial until they are eventually convicted can be found in the Bible, the Talmud, and codes of Greek and Roman law. “The legislator does not permit any question once decided by judgement of the court to be put a second time” – Demosthenes.
Firmly entrenched in British Common law, the double jeopardy law was extended into the North American colonies. In 1639, the Maryland General Assembly enacted the Act for the Liberties of the People, which has been called “the first American Bill of Rights.” Although the Act did not contain an express protection against double jeopardy, it reaffirmed the principle that the inhabitants of the Colony (with the exception of slaves) “[s]hall have and enjoy all such rights liberties immunities privileges and free customs… as any natural born subject of England hath or ought to have or enjoy in the Realm of England by force or virtue of the common law or Statute Law of England.”
You can see that from the Maryland perspective, its easy to see why Jefferson’s accusation against the Crown (Declaration of Independence) for “For depriving us in many cases, of the benefit of Jury trial” and “For transporting us beyond Seas to be tried for pretended offenses,” hit home. But it was really the Admiralty Courts who repeatedly brought men accused of smuggling or aiding the Continental Army to trial again and again until they eventually were able to justify conviction that really angered most Americans.
Of course, like all our fundamental freedoms, this freedom has had its share of detractors and opponents. States have annulled the rights of African Americans. People have been detained and jailed without due process. Police officers occasionally still force confessions. Property is seized without compensation (frequently by corporate interests as well as government ones). We do not yet live in a “Perfect Union” and perhaps never will. The Constitution and the Bill of Rights represents who we strive to be as much as how we govern ourselves.
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Michael Carver -- Historical Interpreter/Reenactor 