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Amdt5.1 Overview of Fifth Amendment, Rights of Persons

The Fifth Amendment protects individuals by preventing the government from abusing its prosecutorial powers. For instance, the Fifth Amendment, provides a check on government prosecutions by requiring “presentment or indictment of a Grand Jury” for a “capital, or otherwise infamous crime.” 1 Likewise, the Fifth Amendment’s Double Jeopardy Clause prevents the government from re-prosecuting a person for a crime for which he or she has been acquitted. The Fifth Amendment prohibition against requiring a person in a criminal case to testify against him- or herself secured a common law privilege that one commentator saw as preventing use of the “rack or torture in order to procure a confession of guilt,” 2 while the Fifth Amendment’s Due Process Clause— “nor be deprived of life, liberty, or property, without due process of law” 3 —provided for “the right of trial according to the process and proceedings of the common law.” 4 In interpreting the Due Process Clause, the Supreme Court has recognized that the Fifth Amendment guarantees procedural and substantive due process. The Fifth Amendment’s guarantee of procedural due process often requires the federal government to provide notice and a hearing before depriving a person of a protected life, liberty, or property interest, while substantive due process generally protects certain fundamental constitutional rights from federal government interference in specific subject areas such as liberty of contract, marriage, or privacy. Finally, the Takings Clause of the Fifth Amendment requires that the government pay “just compensation” to owners of private property that the government takes for public use.

U.S. Const. amend. V. back
3 Joseph Story, Commentaries on the Constitution of the United States § 1788 (1833). back
U.S. Const. amend. V. back
3 Story, supra note 2, at § 1789. back