On The Internal Contradictions Of The Fifth Ammendment: A Constitutional Essay

The fifth Amendment is perhaps most famous for its use in legal dramas relating to the avoidance of self-incrimination, as “pleading the fifth” has becoming a common expression when we do not wish to say something that would negatively rebound upon ourselves.  By and large the text of the fifth amendment is straightforward and simple enough:  “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.”

There are a few rights that are protected in this amendment that are important with regards to both criminal as well as civil law.  For example, grand jury rights are protected except in cases of war or public danger (however that is defined).  Likewise, people are protected from being tried twice (or more) for the same offense as well as being compelled to witness against themselves.  Similarly, the rights to life, liberty, and property are protected and there is a limitation against seizure of property except where just compensation has been given.  The influence of these rights extend into many aspects of our lives and provide a solid basis for protection for the property rights of citizens as well as the rights of those who are accused of crimes.  This is all well and good given that this amendment was created in large part out of a mistrust of government behavior that might violate these rights.  That said, there is a little-recognized contradiction at the end of this amendment that has long created serious problems within the political culture of the United States and which does so to this day.

Where is this contradiction to be found?  It is to be found in the second to last clause of the last sentence of the Fifth Amendment, which says that the rights of life, liberty, and property are not to be deprived without the due process of law.  How are they in contradiction?  Let us take the example of slavery.  Do slaves count as people or property, or both?  To the extent that we view slaves as people, it is unjust to deprive them of their liberty (and their lives) and to view them as mere chattel without the due process of law.  On the other hand, to the extent that slaves are property, it is wrong to deprive slaveowners of their property rights whether through the escape of the slave or through the behavior of the Union Army in the Civil War or through the Underground Railroad.  The question is, whose rights prevail?  The constitution, at least before 1865, viewed slaves as both people and property.  As we have previously discussed [1], the Fugitive Slave Clause did not see runaway slaves or apprentices as subhuman, but did consider their rendition back to their owners/masters as being a matter of public safety, thus privileging the property rights of owners and masters over the personal rights of both slaves and apprentices under contract.  In the enforcement of the Fifth Amendment before the Civil War we find the same privileging of property rights over personal rights, but it could have easily gone the other way as there is a genuine contradiction to be found between guaranteeing personal rights and property rights in the same being simultaneously to different people.

But if we think that such contradictions have been eliminated since slavery has been forbidden except as the penalty for a crime (in which a great many people at present serve as unfree labor in America’s prison system), we would be greatly mistaken.  Numerous contemporary political issues demonstrate that the contradiction between the protection of the personal rights of human beings and the property rights of others in those human beings is far from over.  Abortion is such an example.  Those of us who are of the pro-life position view the right to life of innocent unborn to be a matter of considerable protection as a vulnerable population who deserves the protection of law.  However, those who argue for a pro-abortion position believe that women have property rights in the womb and in the unborn children who inhabit that womb and that their right to choose whether or not to permit their unborn children to live is a property right that deserves the protection of government.  As is the case with the antebellum slavery debate, both sides can point to the fifth amendment as being a bedrock of their position, as the amendment itself does not state whose personal and property rights are to take precedence in the case of a conflict.  Traditionally speaking, American jurisprudence has long tended to support the strongest party when there is a conflict, supporting powerful slaveowners at the beginning of the American republic and those who are in favor of infanticide in the past few decades, although it could easily be different if we were a more just people.

Nor are these the only such cases where conflicts exist.  Who gets to claim the property rights of intellectual property created by an employee of a company?  Do these property rights belong to the employee who created them or to the company who provided the time, wage, and equipment which may have been used to help the person in his or her creativity?  How do we deal with questions of theft of time or the moonlighting of salaried employees?  These are all questions where the personal rights of people and the property rights that others hold in them are in conflict.  And such examples could easily be multiplied.  Do students in high schools and colleges possess full civil rights or do the schools where they are educated possess property rights that restrict the freedoms that such students can claim?  Does age or infirmity remove the right to life from someone who has become an economic burden to others?  Who gets to define a situation of public danger that will remove the projection of a grand jury from someone accused of wrongdoing?  None of these matters are without controversy and none of them offer straightforward answers that are free of our own biases and perspectives and experiences and interests.

The contradiction at the heart of the Fifth Amendment is not one that is going to go away because it conflates two different matters of considerable importance to Americans, our personal rights over ourselves, and our property rights and interests in other people.  We would not view ourselves as free if both sets of rights were not respected, but to expand one set of rights for ourselves is to contract it for other people.  To the extent that our interests diverge and we wish to restrict others in how they may behave so that our interests are protected, other people will have their personal rights reduced or removed.  It has always been that way in the American republic and it seems unlikely that it will be any other way because we have always viewed our personal rights as limiting what others can do to us, and viewed our property rights as ways that may similarly demand others behave in a certain way that they may not do voluntarily but must instead be coerced to do.  And so long as we resist coercion against ourselves but simultaneously wish to coerce and dominate others, these conflicts will remain.

[1] See, for example:


About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
This entry was posted in American Civil War, American History, History, Musings and tagged , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s