The Fifth Amendment cleared Congress on September 25, 1789. Ratification came on December 15, 1791, as part of the first ten amendments, the Bill of Rights. One sentence of constitutional text does a surprising amount of work.
Encyclopaedia Britannica counts five clauses in it. A grand jury must indict before a person answers for a capital or other serious crime. Double jeopardy bars a second prosecution or punishment for the same offense. The self-incrimination clause, known as “pleading the Fifth,” keeps people from being forced to testify against themselves. Due process says nobody loses life, liberty or property without fair legal proceedings. And the government must pay just compensation when it takes private property for public use.
Where the right to stay silent came from
James Madison proposed the self-incrimination language in 1789, in the package of amendments that became the Bill of Rights. His version said no one should “be compelled to be a witness against himself.” Congress added three words, “in any criminal case,” and that edit shaped how the clause was first read: it covered criminal trials, not civil ones.
The idea of throwing out forced confessions is older than the amendment. By the late eighteenth century, English and early American courts had already decided that a coerced confession could be kept from a jury because it could not be trusted. The Supreme Court leaned on that reasoning for much of the nineteenth century. Then, in the 1897 case Bram v. United States, it suggested the Fifth Amendment itself set separate limits, tied to whether a confession was voluntary. Yet in 1912 the Court held that a confession did not have to be excluded just because police never warned the suspect of a right to stay silent.
The Court widens the clause
For years the clause bound only federal proceedings. Malloy v. Hogan, decided in 1964, extended it to witnesses in state court. A year later Griffin v. California barred prosecutors from urging a jury to read guilt into a defendant’s silence.
Then came 1966. In Miranda v. Arizona the Court ruled that the protection is not limited to the courtroom. It applies when a person is taken into police custody for questioning, and once a suspect “indicates in any manner that he does not wish to be interrogated,” the officers must stop asking. Those police statements are now called Miranda rights or the Miranda warning.
The right has edges. In Schmerber v. California, also from 1966, the Court allowed a drunken-driving defendant’s blood test into evidence, because the result was not “testimony nor evidence relating to some communicative act or writing.” In Berghuis v. Thompkins in 2010, a suspect sat silent for nearly three hours, then gave a one-word answer that helped convict him; the Court put the burden on suspects to invoke their right by saying so. And in 2013 Salinas v. Texas, decided 5-4, let a prosecutor use a man’s failure to answer one question before his arrest.
The clause reaches beyond criminal defendants in some settings. In 1924, McCarthy v. Arndstein let a debtor refuse to answer questions at his own bankruptcy hearing. Hoffman v. United States, in 1951, protected a witness who reasonably feared that his testimony would supply a link in the chain of evidence against him. In 2001, Ohio v. Reiner said the right “protects the innocent as well as the guilty.” Organizations get no such shelter: United States v. White, in 1944, held that a labor union under criminal investigation had to hand over its records, since the Bill of Rights was written to protect individuals.
Property and the takings clause
The last clause is about money. Federal eminent domain sat largely unused outside the District of Columbia in the nation’s early years, and the Supreme Court did not recognize it until Kohl v. United States in 1876. Congress did not pass general authority for federal condemnation cases in federal courts until 1888.
States came under the compensation rule later. Barron v. Baltimore, in 1833, held that the just compensation clause did not apply to them, and in 1878 the Court at first rejected the argument that the Fourteenth Amendment’s due process clause gave owners the same protection against states. That changed in 1897. In Chicago B. & Q. R.R. v. City of Chicago, the Court said that a taking without provision for compensation is not due process of law. The power can also be handed to private bodies such as railroad and bridge companies, as long as they serve a valid public purpose.
Sources
- Fifth Amendment – Grand Jury, Double Jeopardy, Self Incrimination, Due Process, Takings (National Constitution Center)
- What is the Fifth Amendment? (Encyclopaedia Britannica)
- Fifth Amendment – Right Against Self-Incrimination (Annenberg Classroom)
- Early Doctrine on Self-Incrimination (Constitution Annotated, Congress.gov, Library of Congress)
- Takings Clause: Overview (U.S. Constitution Annotated, via Cornell LII)
