There’s a lot packed in this one little Amendment! Thanks for reading through the Constitution with me!
Many of the rights in the Fifth Amendment are rooted in old English common law. The grand jury clause has roots back to the Magna Carta. The founding fathers wanted to assure that these rights are not forgotten.
Transcript is from National Archives (archives.gov). Explanations italicized in bold between clauses.
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;
Grand Jury Clause:
Grand juries are required of capital crime or other infamous crime. A capital crime is a crime punishable by death. An infamous crime is usually a felony crime involving corruption or fraud and has significant public notoriety. (Can you think of any cases of infamous crimes?)
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;
Double Jeopardy Clause:
A person cannot be tried twice for the same crime (this does not include mistrials).
nor shall be compelled in any criminal case to be a witness against himself,
Self-incrimination:
A person cannot be required to testify against themselves. This is why some people say, “I plead the fifth.” It is also the root of the Miranda Rights that officers are supposed to read to persons being questioned. (Based on Supreme Court decision Miranda vs Arizona in 1966.)
nor be deprived of life, liberty, or property, without due process of law;
Due Process Clause:
The Due Process Clause is going to take a minute, so bear with me. Due Process is enshrined in the Fifth Amendment for federal-level issues. Due Process is further protected (or “incorporated”) at state-level by the Fourteenth Amendment. (This information is from National Constitution Center.)
There are three kinds of Due Process. 1) procedural due process, 2) incorporated due process against the states, and 3) substantive due process. We’ll look quickly at 1 and 3.
Procedural due process is the procedures the government must follow before depriving a person of “life, liberty, or property”. Normally, this means a jury trial is required. However, beginning with Mullane vs Central Hanover Bank (1950), there may be other ways to cover due process as long as a person 1) receives notice, 2) has an opportunity to be heard, and 3) receives an impartial tribunal.
Think about this one when you read about potential cuts to Medicaid and Medicare and Social Security. Interestingly, when courts think of “life, liberty, and property” they see “property” as more than simply tangible stuff. In Goldberg vs Kelly (1970), welfare benefits receive property rights. If a court is to deprive a person of property they must establish 1) the nature of the property right, 2) the adequacy of the procedure compared to other procedures, and 3) the burdens that other procedures would impose on the state. (Mathews vs Eldridge, 1976). (from National Constitution Center’s Due Process article)
Substantive Due Process: This simply says that due process also covers substantive rights not enumerated in the Constitution. Substantive rights are based more on the traditional concept of our natural rights, which are so many that they cannot be enumerated in one Constitution. The Supreme Court has reserved the right to interpret what those look like in each generation.
nor shall private property be taken for public use, without just compensation.
Takings Clause or Eminent Domain:
The government can take property for public use. However, the person must receive just compensation.
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