A window might look clear and bright and simple — just a slice of glass that lets in light and keeps out the cold.
But like a drawbridge, it is more complicated than it looks, relying on a balance of weight and counterweight to grant or deny access.
So does the Fifth Amendment.
It is the longest part of the Bill of Rights — a 111-word sentence that lays out the weights and pulleys of the justice system.
“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.”
No one understands those mechanics better than a defense attorney.
“In a broad brush, it provides protections for people against due process violations,” said Devin O’Leary of the Westmoreland County Public Defender’s Office.
U.S. Supreme Court Justice William O. Douglas called it “an old friend and a good friend, one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized.”
“You know the government has to prove you guilty beyond a reasonable doubt before they can … put you in jail or … make a levy against you of any nature,” said O’Leary. “And that all comes from the right to due process, and that’s in the Fifth Amendment.”
The Miranda warning, established in a 1966 decision with Douglas in the majority, derives from the Fifth Amendment.
It’s the line so often heard on film: “You have the right to remain silent. Anything you say can and will be used against you…”
But why? What made this so important that the framers used the valuable real estate of the Fifth Amendment to construct a system of weights and counterweights that allows the courts to move without crushing the people caught in them?
“That comes from our founding fathers’ reticence to allow the king to just do what he wants to his subjects,” said O’Leary. “We’re not subjects under the purview of a king. We are subject to our peers, and that’s why we have that right to a trial by jury — an impartial jury of our own peers — to judge us before the government can come in and either take our property or put us in a cage.”
Let’s be clear: The Fifth Amendment doesn’t say the government has no power. It says that power must pull against the restraints that protect the accused.
Respecting those restraints can be a challenge for both the government and the people.
When law enforcement says it is acting to keep us safe, we want to believe it. But the duty of the defense is to stand in opposition — not to obstruct, but to demand the job is done properly. Due process is the difference between law enforcement and a lynch mob.
“You have every right not to participate as a witness against yourself, and so it does give you, to some extent, that immunity from being used to prosecute yourself,” said O’Leary.
Douglas concurred.
“The critical point is that the Constitution places the right of silence beyond the reach of government,” he wrote.
But the Fifth Amendment isn’t a get-out-of-jail-free card. It has specific demands and precise limits.
A counterweight can just as easily slam a door as open a window. By the same logic, you can’t invoke the Fifth to avoid questions you don’t want to answer or to protect someone else from incrimination.
And the right to remain silent doesn’t actually mean saying nothing. You do, in fact, have to mutter the magic words.
“I know it seems a little counterintuitive, but … you have to affirmatively invoke your right to remain silent before police actually have to stop asking you questions,” O’Leary said.
While much of the Fifth Amendment is focused on criminal court, it also has civil applications. The takings clause, for example, puts a fence around private property — at least temporarily. Much like the Fourth Amendment, it doesn’t stop the government from taking your land or possessions. It does, however, require that it be for public use and that there be just compensation.
The founding fathers were landowners, just a generation or so removed from aristocratic England. They did not want to see another system where property could be taken from one person and handed to another. (At least, that was the argument when it came to their own liberty. It was harder for Black and Native people to invoke those rights.)
Counterweights don’t stop a window from opening or a bridge from lowering. They make it happen smoothly and safely. Likewise, the Fifth Amendment sets up a legal framework where the push of public interest is balanced by the pull of individual rights.