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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 12



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 [standing army — military], or in the militia [armed freemen], when in actual service in time of war or public danger . . .


This clause draws a distinction between the status of the regular citizens of the nation and those who are in the military.  The citizen is subject to civil law and the soldier to military law, the Uniform Code of Military Justice.  We will not dwell on the differences; just be aware that there are some very major differences in the workings of the two systems.  This separate clause, “or in the militia,” also makes it abundantly clear that the militia is not a part of the military establishment, even though it can sometimes be under military control.  This is in reference to the aforementioned argument that the National Guard is our present-day militia.  The National Guard is always subject to the Uniform Code of Military Justice.  If it were indeed the militia, it would only be subject to this system of justice when in actual service in time of war or public danger.  The National Guard is always subject to military law; therefore it cannot be the militia of which our Founders spoke.


This clause of Amendment V establishes another protection from government that is fast escaping our grasp.  The provision of the grand jury was yet another attempt by our Founders to insulate us from an overreaching government.  It is comprised of a group of private citizens from the jurisdiction in which the capital crime or infamous offense took place.  This jury does not judge the law under which the offender is charged or his guilt or innocence.  They do determine whether it is a legitimate charge that has been presented and whether there is enough evidence to support that charge.  It is their duty to be a buffer between the citizen and the government, to prevent the government from prosecuting citizens other than for offenses against the legitimate law of the land.


In other words, they are to ensure that we go to trial if the charges are legitimate and to protect us from having to undergo that ordeal if it seems to them we are being prosecuted for actions that are merely politically incorrect or which may simply make some of our elected officials uncomfortable.  It is to protect us from prosecution on the basis of our political beliefs and actions, unless these beliefs and actions run afoul of a legitimate law.  This is important enough to reiterate.  The grand jury was NOT instituted by our Founders to see justice done to offenders.  We have the petite jury and the courts to fulfill that need.  The function of the grand jury is to protect us from government.  Why else would it be in the Bill of Rights?


We must have come an awful long way in this country.  To judge only from the number of those who are called into court through this process, it would seem we have little “capital crime, or other infamous crime,” taking place in this nation today.  How often do you hear of a grand jury being called to present an indictment?  Normally, the County or District Attorney, in the name of expedience, just takes it upon himself to indict the accused.  How can this be so blithely ignored?  The grand jury faces the danger of elimination from the process of justice from disuse and by our limited understanding of just how important a protection of our liberties it is.  If we are to remain a free people, this must change, and change quickly.


 . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .


This is known as the double jeopardy clause.  There have been two high-profile cases in the last couple of years that appear to at least touch in this area.  The first is the Rodney King case, where several police officers were charged with an abridgment of his civil rights by using excessive force while trying to arrest him.  The second is the O. J. Simpson case.  He was accused of murdering his wife and another man.  There will be no attempt here to sit in judgment on either case.  The purpose of this discussion is to look at the workings of the law.  You will recall that in each case the accused, the police officers and Mr. Simpson respectively, stood trial in the venue of criminal court.  The juries in each trial could not reach the unanimous agreement required to render a verdict of guilty.  So in each case, the accused were not convicted


We must bear in mind that this is not the same thing as being found “not guilty” or being found “innocent.”  If such were the case, the accused would go free and unquestionably be out of the reach of the state, at least on the given charges.  In the first instance, what we had were hung juries, which did not deliver a positive verdict, and the accused maintained the same status they had before the trial.  It is almost as if the trial had never happened, and they were still liable for judgment.  If the jury had delivered a positive verdict, either “guilty” or “not guilty,” the trial would be complete.  If “guilty,” the accused would be sentenced; if “not guilty,” the accused would be freed.  As it was, they were still liable to judgment.


What followed for the defendants of both trials was another trial.  But this time, the trials were held in the venue of civil court.  The standard of guilt in this case became “a preponderance of the evidence,” which is an easier standard to prove than the standard “of beyond a reasonable doubt.”  In each case, there was enough agreement within the respective juries to render a verdict of “guilty,” and the defendants were duly sentenced.  All that transpired in the above cases may well have fallen within the letter of the Constitution.  Still, an uneasy feeling stays with me.  Was the government’s motive in the second prosecution of these cases one hundred percent a pursuit of justice, or were these actions, at least partially, calculated and taken for lesser motives? 


If not the former, then this is what the double jeopardy clause is to protect us from.  If the full and unrestrained power of government is repeatedly brought to bear against a given defendant, eventually the defendant will become physically diminished, broken-down mentally and emotionally, and depleted of assets with which to defend himself.  Under these conditions, any citizen may at last succumb to enough government prosecution, whether guilty or not guilty.  Whether this happened in either of the cases, I do not know; but government actions in such cases bear continual watching.  This clause is intended to shelter us from any such actions on the part of government; and for our own protection, we must demand that it be honored.


 . . . nor shall be compelled in any criminal case to be a witness against himself . . .


This is an area of our rights that, on the surface, seems quite secure; but I entertain serious doubts this is the case.  Have you ever stopped to consider just what constitutes being a witness against yourself?  We tend to think only of being on the witness stand and giving oral testimony, or being interrogated in the back room; but it seems to me it can be more than that.  Could being forced to provide portions of our papers and effects for the IRS (see Amendment IV) or samples of our bodies (breath, blood, and DNA samples) as evidence possibly be relative to this clause?  There are instances when we are compelled to provide these things, or we are held guilty and are liable to the same consequences, whether we are or are not guilty, because we did not provide evidence against ourselves.


Consider two subjects that have already been mentioned:  the IRS audit and the random traffic stop.  Once again, I hasten to point out that this is not written as a defense of scofflaws, but rather to alleviate the usurpation of our unalienable rights.  In the audit, you are required to provide records (papers and effects), and in the traffic stop, you may be required to provide a sample of your person (breath, blood, or DNA).  In both instances, if you do not comply you are automatically judged guilty.  In the former, you can have fines and penalties imposed, and you may possibly be required to serve prison time.  In the latter, you can have your driver’s license taken and your driving “privileges” suspended for a given period of time.  The proof of guilt apparently is that you did not comply.  This would seem to be a form of compulsion and an abridgment of this clause, or at least of our Founders’ intent for this clause.


How does the government get around this?  This is what I suspect.  You will notice this clause seems to be restricted to the “criminal” case.  If we simply acknowledge the “letter of the law” as opposed to the intent of the Framers of this instrument, it becomes a very easy matter for the government to evade the intent.  The “crimes” mentioned simply are not classified as criminal.  They are placed in other statutes.  The "audit" is placed under the tax statutes, and "operating under the influence" is placed under the civil statutes.  In the former, you are shuffled off to tax court; and in the latter, you are shuffled off to civil court.  In neither case are you charged in criminal court.  Voilà, all legal; but it is quite doubtful any of this was the intent of our Founders.


“We the people,” who are not well-versed in the law, fall easy prey to this sleight of hand.  Even if we are aware, we might deign it appropriate in these particular cases; but we are nourishing a dangerous animal if we do.  Granting, only for the sake of argument, that it is appropriate, how can we be sure the government will stop there?  History shows us repeatedly that government avidly uses any power ceded and grasps for still more.  Does our quest for personal security have no limits?  Is it no longer balanced by any desire for freedom?  If these actions remain unchecked, what percentage of our unalienable rights will we be able to bequeath to our grandchildren?


 . . . nor be deprived of life, liberty, or property, without due process of law . . .


This is known as the“due process” clause.  Now, it is entirely possible that the author does not begin to comprehend our current laws and legal system.  My, apparently naive, concept of this clause suggests that “due process” would mean being positively convicted of the charges of which one is accused before one would become liable to the loss of life, liberty, or property.  Two instances of the abridgment of this clause have already been pointed out.  In some tax cases, the property of an individual, who is supposed to be presumed innocent until proven guilty, is frozen or confiscated even before trial.


The same is true with the application of the racketeering and corruption (RICO) statutes.  Though originally aimed at the drug trade and organized crime, its application has already spread to many other areas.  Quite simply, I fail to understand the government magic that brings the application of these laws into compliance with the Constitution.  Neither the motive of the government in these matters, nor the apparent condition that a majority is willing to tolerate this condition, is sufficient justification for their continuance.  The danger to our rights and liberties that they engender is just too great.


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


This clause would apparently validate the government’s claim to the use of eminent domain; but even so, you should see this power of government is not unrestricted.  If one is to lose his right to a portion of his private property, he, both personally and directly, is to be compensated with something of an equivalent value.  This is another instance in which most people’s concept of the matter tends to be limited.  We normally tend to think of such things as the government acquiring the right-of-way for a public roadway, or acquiring property for a public park, or acquiring property for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.  Here again, though all of these things may be fit subject for this concept, it is my personal opinion that the concept currently covers far more than these things.


Do you really enjoy the right to private property if you do not have full use of that property?  Some examples are in order.  A few years ago, California was suffering a severe drought and experiencing a problem with raging wildfires.  Several families living in the area were forced to stand and watch as their homes burned to the ground.  Why?  Because the government, in an effort to protect a species of “endangered rat,” had forbidden them to clear firebreaks around their property.  Some years back, on the East Coast, a man bought a barrier island for several hundred thousand dollars for the purpose of erecting his dwelling and possibly selling lots to others who might wish to do likewise.  The government denied him the ability to do so because it might damage the island.  People who secure the raw produce of the earth, from which all of our wealth is initiated, are denied an ability to do so because they might damage the environment.  They may encroach on an endangered species or damage a wetland.  Even though these people did not actually lose their property proper and undoubtedly continue to pay the taxes on it, they have lost a very considerable value because they have lost the revenue that could be generated by its intended use.  Both investments and livelihoods are lost.


If these people who have been financially harmed have been compensated at all, it would be difficult to argue that they have been compensated proportionately to their loss.  If it is argued that their compensation is in the form of prevention of the destruction of the environment, it would be still harder to argue that their gain is proportionately greater than the gain received by each and every one of the rest of us.  If this gain is shared communally, as is the use of a public roadway, then we all must be ready to share in its cost of acquisition.  This is not happening in any real sense.  If there is a true gain issuing from these government actions, we are all benefiting while the cost for the benefit is borne solely on the backs of those directly affected.  And their compensation is neither personal nor direct.  It would thus appear that these actions of government are a direct abridgment of this clause.


This clause would also appear to affect the matter of taxation.  When the government taxes a citizen, it is taking some property from him.  No, it is not necessarily directly taking real estate or personal property; but it is taking value (money) that can be used to procure these things; so, in essence, it is the same thing.  If this does not make sense to you, think of it in reverse.  If someone has a tax bill he has not the ready cash to pay, he is forced to convert some of those other assets he does have into cash in order to make the payment.  Cash is truly private property.  It represents the fruits of one’s labor as surely as a new red convertible.


Under this clause, it would seem that when government commandeers private property from the individual for public use, the individual should have every expectation of a “just compensation.”  That is, he should expect to receive something of proportionate value, both personally and directly, just the same as if the government directly commandeered some portion of his private property.  For instance, if the tax is rendered to maintain an effective military establishment, he should expect the blessings of their protection.  If the tax is rendered for a system of public airports or roadways, he should expect that he could fly or drive without undue impediment.  It all boils down to this:  the individual taxpayer has a right to expect compensation, in the form of benefits, goods, and services, proportionately equivalent to his tax burden.  In the instance of the military, it is just that some pay more than others do because they have more to protect than others do.  In the instance of public transportation, most taxes are raised in the form of user fees and excise taxes.  This is just because those who use the services more should pay more for their use.


The problem is that more and more of the taxes government collects, the majority of them today, are not being returned in the form of benefits, goods, and services to those from whom they were taken.  In a misguided attempt to guarantee equality of condition by government fiat, we have stumbled into the concept of“income transfer payments.”  Regardless of the good intended by these income transfer payments, their clear intent and effect is for the government to forcibly take something from those who have and give it to those who do not.  This is a public use of the individual’s private property.  Moral obligations aside, what commensurate benefits, goods, or services (“just compensation”) does the individual receive in return for his forced contribution?  Try as I might, I cannot conceive of any personal, direct, and commensurate (“just”) compensation to that individual from which it was procured.  Is it government’s rightful prerogative to attempt to equalize our economic conditions through the use of force and coercion?  This would be a dangerous power to grant a government, even if “we the people” had the authority to grant them the power to act in this manner.  We do not have the authority to behave this way as individuals.  From what source do we, ourselves, get the power to grant the government to behave in such a manner on our behalf?  Perfidy reigns.




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