While the Fifth Amendment is a crucial marker of individual rights, the lack of clear definitions and changing political landscapes make its application dangerously subjective.
Your right to "plead the fifth" is a constitutional protection against self-incrimination, but it's only one component of the legal provision that safeguards your rights from unjust criminal prosecution.
The Fifth Amendment protects against double jeopardy, being forced to incriminate oneself, prosecution without a jury of one's peers, and eminent domain. The legal precedents establishing due process protect more than just criminals; everyday citizens are protected from abuse of the justice system.
The provision, in full, dictates: "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."
In 2019, what are the limitations of these protections? Are there exceptions? What situations would require you to invoke them? What should you say to activate these rights?
While some may see "pleading the fifth" as tantamount to admitting guilt, it symbolizes your protection from self-incrimination. Cornell Law School defines the term to mean, "The act of implicating oneself in a crime or exposing oneself to criminal prosecution." When questioned by law enforcement during an investigation or during a criminal trial, an individual may refrain from answering questions or submitting requested materials to officials if it's believed that doing so may result in new criminal charges.
However, issues unrelated to criminal matters are not always protected from self-incrimination rights. For example, tax issues are not covered under the law so as to prevent individuals from withholding materials from the IRS. Furthermore, the law becomes murky when external circumstances could easily influence a person's ability to remain silent. Egregious examples of this right being circumvented include forced confessions and unjust interrogations.
As to due process, it's well known that before you can be found guilty of a crime, a grand jury of 16 to 23 people must be presented the case in private and deem that criminal charges justified. While a grand jury acts as "a kind of buffer or referee between the government and the people," an individual has a right to trial by jury. However, the Constitution's vital dictum against citizens being "deprived of life, liberty or property without due process of law" is only defined through a series of court rulings and provisions.
Of note is that due process protections are designed for individuals and application "in each case upon individual grounds." Sadly, this means that whole groups or communities are not, strictly speaking, as entitled to due process. For example, entire student bodies, teachers, or consolidated groups like protesters can be given treatment outside of lawful protections.
Lastly, eminent domain is the restricted power of the government to take private property and convert it into public use. Under the Fifth Amendment, the government can only use this power if they provide the private owners with fair compensation. However, abuse of eminent domain is fairly common.
For example, in 2019, Donald Trump defended his demand for a border wall separating the United States and Mexico under the right of eminent domain. While it was originally meant to be an economic benefit, there are no codified measurements of what constitutes "just compensation." The seizure of land by the government quickly becomes exploitative and a violation of privacy that's paramount to government theft.
While the Fifth Amendment is a crucial marker of individual rights, the lack of clear definitions and changing political landscapes make its application dangerously subjective. From due process to eminent domain, there are more exceptions than clear definitions of "justice."
Why the only amendment never brought before the supreme court may be more important than you think
You'd be hard pressed to find someone living in the U.S.A. (and, perhaps in Russia) who could not tell you that the Second Amendment involved the right to bear arms. And, most people understand that something in the Bill of Rights protects them against unlawful search and seizure, even if they don't know that it's the Fourth Amendment that does so. But sandwiched in between these two celebrity amendments is the all-but-forgotten Third Amendment. Since its inclusion in the Bill of Rights (the first 10 amendments to the constitution), the Third Amendment has been the subject of a small handful of cases, and not one of them has gone before the Supreme Court. Here it is:
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.
Called the "runt piglet" of the Constitution by the American Bar Association, the Third Amendment would seem on the face of it to have little place in our lives. Does anyone think the government is going to try to use our homes as barracks? The idea is almost laughable. At the same time, this anachronistic addition to our Constitution is fundamentally concerned with the same issue as its better known siblings, namely protecting citizens from excessive government authority, and the elemental conflict between the rights of the individual versus the rights of the federal government. As such, the Third Amendment actually does have some relevance today, and could have even more in the future.
Militarized police force
Written by James Madison in response to calls from several states for greater constitutional protection for individual liberties, the Bill of Rights lists specific prohibitions on governmental power. Its purpose was not to grant rights but to protect rights the framers saw as fundamental and to place specific limits on government power. Third Amendment centers around the individual's right to privacy in their homes, and underscores that citizens have the right not to have the government intrude in that sacred space, even in times of war. When the amendment was written in the eighteenth century, quartering troops in private homes would have been top of mind for Americans and Englishmen. In fact, one of the many accusations Congress leveled against the king in The Declaration of Independence were his "quartering large Bodies of Armed Troops among us." One issue then, as now, is a balance between the rights of individual citizens and the needs of the military. For example, what if the military claims they need to occupy a home in order to surveil a suspected terrorist cell next door? Beyond that, what actually constitutes "military?" Civil liberties activates warn that our nation's police forces have increasingly taken on a military role, and that the increased use of police in this capacity is bound to create conflicts.
Back in 2013, a family in Nevada claimed that police had occupied their home to gain a tactical advantage against a suspect in a near-by house, there-by violating that families' Third Amendment rights. The case was dismissed in federal court because, among other findings, Judge Andrew Gordon ruled that a municipal police officer is not a soldier. Judge Gordon also followed a 1982 decision that the Amendment does not relate to state governments. But, as the lines between the police and the military are increasingly blurred, if not obliterated, we might expect to see more of these Third Amendment cases being brought before the courts. As Ilya Somin of the Washington Post pointed out in 2015, "The difficult issues raised by the militarization of police forces suggest that it may be time to stop treating the Third Amendment as just a punchline for clever legal humor."
A surveillance society
The Third Amendment is the only part of the Bill of Rights, and the Constitution as a whole, that actually addresses the relationship between citizens' rights and the military. Scholars have pointed out that it actually underscores civilian control over the military. That power dynamic would be important in any era, but takes on another layer of significance today when what passes for, and acts in the capacity of, the military is very different from what it was in 1791. We live in a world where people leave a digital trail of data wherever they go, and where we rely on the use of independent contractors, satellite surveillance and drones for our national defense, and let's not forget about AI. In a not-too-distant future when our military may be more machine than human, what could having "soldiers" in our "homes" mean?
A 2015 article "Could the Third Amendment be used to fight the surveillance state?" quoted law professor Steven Friedland, who had an idea.
"The Third Amendment no longer will be the forgotten amendment if it is considered to interlock with the Fourth Amendment to provide a check on some domestic mass surveillance intruding on civil life, particularly within the home, business or curtilage of each. In the digital era, the dual purposes of the Amendment should be understood to potentially limit the reach of cyber soldiers and protect the enjoyment of a private tenancy without governmental incursion."
Home is where the heart is
While the US Constitution itself does not contain an express right to privacy, the Bill of Rights reflects the Framers' concerns for protecting specific aspects of it, namely; the right to privacy of beliefs in the 1st Amendment, the right to privacy for person and possessions against unreasonable search and seizure in the 4th amendment, and the right to privacy in the home, the Third Amendment.
The right to a private space we call home is not just an American right. It is unquestionably a fundamental human right. The Third Amendment is largely forgotten in today's world of bots, drones, data, and virtual reality, but that "runt piglet" may end up being the very thing we need to call upon to protect it.