Brushfire of Freedom
The Armory
Note: Originally published on May 26th, 2009 at Brushfire Sparks
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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 offense 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.”
The final portion of the fifth amendment first works in conjunction with the fourteenth amendment to ensure due process and equal protection under the law. There is a great deal in this last portion, as there is in the entire amendment. Keeping in mind that these are the rights of the individual and protection of those rights from the government, I’ll take a brief look at each portion and how it has been impacted in recent years.
The first portion states that an individual can not be deprived of life, liberty, or property without due process. Due process basically means you have to be tried in order to be imprisoned, have your property confiscated, or be put to death. The 14th amendment spreads this requirement to the states, and includes the “equal protection” clause that has been connected back to the federal government through incorporation. To summarize, you are innocent until proven guilty and can not be punished until you are proven guilty. This portion of the fifth amendment ensures you can not be imprisoned without just cause.
Due process means that if the Gitmo prisoners were brought to the US, attorneys could argue that the US had violated their fifth amendment rights ( in several areas) and release them into the country. This is what the Bush administration was trying to prevent, and what Congress and Obama are beginning to see as truth. By keeping the enemy combatants in Cuba, they are not subject to the protections of the Bill of Rights. If you think that sounds unfair, keep in mind these terrorists were not arrested, they are prisoners of war. They violated the Geneva conventions when they joined a military conflict without wearing the uniform of their country (Al Qaeda has no country). They were captured on the field of battle. In order to facilitate legal proceedings with terrorists, you must first arrest them on a field of battle. You have to read them the Miranda act, in their language. I would guess that, given everything our soldiers already do on the field of battle, this is not something that would be accomplished very effectively, what with grenades flying, bullets screaming by, and IED’s all around.
The second portion of this last part focuses specifically on the conditions under which the government can take your private property. The amendment states that, if the government takes your property for public use, it must compensate you fairly for the value of the property. My favorite example of this is the old cop shows on TV where some citizen loses their vehicle to a police officer on foot, enabling the officer to catch the bad guy. The vehicle is damaged quite a bit in the chase, and we assume that the owner receives “fair compensation” for the vehicle. Under the fifth amendment, that compensation is a guaranteed right of the citizen.
Looking into today’s world, we can see that this last portion of the fifth amendment has taken a bit of a beating. The 2005 decision by the Supreme Court titled, “KELO V. NEW LONDON (04-108) 545 U.S. 469 (2005)” ravaged the fifth amendment in that it expanded the concept of “public use” to mean any use that a group of politicians believe will fatten the government coffers. The properties owned by Susette Kelo and eight other private citizens were seized under “eminent domain” by the city of New London, Connecticut. The purpose of the seizure; to make the property available for a development scheme that was to create 1,000 new jobs and significantly increase the tax base for the city.
The initial concept of Public Use was to garner property, where necessary, to provide utility accesses, expanded public services, etc. Individuals who were required to surrender their property in these cases were compensated for the property at market values, or fairly close, in most cases. In these instances the government, city, state, or federal, is the organization that is actually taking ownership of the property. The Kelo case is significant in that a private development concern took control of the property, not the government, meaning the property was being developed for private use and supposed public benefit (the jobs and taxes). Thus Kelo defined “public use” as “private use” meaning that developers need only convince the government they would be able to increase their tax revenues, and the government could seize any private property they chose on behalf of that private concern under the guise of “public use”.
Oddly enough, the economic benefit expected from the development of the Kelo property never materialized. As of 2008, the place where Ms. Kelo’s home (yes, she had a house there) and her neighbors, all who were thrown out for this development, still stand empty. To summarize, nine private citizens in a New London, Connecticut were forced from their homes to make way for a private development that never materialized because the Supreme Court did not uphold the fifth amendment. I don’t pretend to know the minds of our Founders, but I am guessing that is most likely not what they were thinking when they crafted the Bill of Rights.
Contact Ramarious Brushfire Home
Copyright 2010. The published content is the sole property of the author. Any copy, use, or redistribution of any portion of the material without the written consent of the owner is a violation of international copyright laws.