Fifth Amendment: Grand jury, double jeopardy, self-incrimination, due process, takings

The text

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.

Text: National Archives transcription of the amendments in their original form (spelling and punctuation as in the original).

What it means

• Serious federal crimes require a grand jury indictment (except in military cases).
• No double jeopardy: you cannot be tried twice for the same offense.
• No one can be forced to be a witness against himself ("pleading the Fifth").
• No one may be deprived of life, liberty, or property without due process of law.
• Private property may not be taken for public use without just compensation (the Takings Clause, which limits eminent domain).

Who proposed it

James Madison of Virginia introduced the proposals in the House of Representatives on June 8, 1789. He drew on state declarations of rights, especially George Mason's Virginia Declaration of Rights (1776), and on the amendments the state ratifying conventions had recommended. The House approved 17 amendments; the Senate cut and combined them to 12, and Congress sent those 12 to the states on September 25, 1789.

When it was proposed and ratified

• Proposed by Congress: September 25, 1789. Congress approved the 12-article joint resolution (House September 24, Senate September 25, 1789).
• Ratified: December 15, 1791. Virginia became the 11th of the 14 states to ratify, completing ratification of Articles 3–12 of the 1789 resolution (Amendments 1–10).

Amendments are not signed into law. Congress proposes them by a two-thirds vote of both houses, and they become part of the Constitution when three-fourths of the states ratify. The President has no formal role (Article V).

Why it was made

The Constitution of 1787 had no bill of rights. Anti-Federalists such as George Mason, who refused to sign it partly for this reason, warned that a strong national government could trample individual liberties. Several states ratified only after recommending amendments, and Federalists promised to add them. Madison kept that promise in the First Congress. The amendments limited only the federal government until the Supreme Court began applying most of them to the states through the Fourteenth Amendment (selective incorporation).

These protections came from English common law and from Magna Carta's promise that no free man would be punished except by "the law of the land," the ancestor of due process. Colonists and Anti-Federalists wanted them written down so the new national government could not use courts and prosecutions to oppress people.

Key Supreme Court cases

• Miranda v. Arizona (1966): Suspects must be warned of the right to remain silent
• Korematsu v. United States (1944): Upheld Japanese American exclusion; due process challenge rejected (since repudiated)
• Dred Scott v. Sandford (1857): The Court used Fifth Amendment property rights to strike down the Missouri Compromise

FCLE tips

• Five protections in one amendment: grand jury, double jeopardy, self-incrimination, due process, takings.
• The 5th Amendment's Due Process Clause limits the federal government; the 14th's limits the states.

Related study guide sections

• Chapter 6: Amendment 5
• Chapter 6: The Bill of Rights overview
• Chapter 8: Due Process Clauses
• Chapter 3: Due process
• All 27 amendments