The Fifth Amendment—Additional Limits on Governmental Power

“You do not have to incriminate yourself. But once you assert your innocence, and once you say you didn’t do anything wrong, you can’t then use the Fifth Amendment to say, ‘I’m not answering questions.’” ~ Rush Limbaugh

Greetings my fellow Americans!

As we continue to traverse the language of the Fifth Amendment, we find several enumerated statements on what those in positions of governmental power are prohibited from doing with respect to legal adjudication and punishment:

• 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;

That said, these three have perhaps become the most abused by those who both litigiously prosecute and defend.

Insofar as we’re referring to people in all cases, there can be little doubt that rigorous checks and balances amongst, and between, the respective parties were paramount in the Founders’ conceptions of liberty and “self-government.” Fundamentally, they knew that formal anarchy would not be an option, because people outside of government are just as tempted to do what is ultimately outside their best interests, but, more importantly, run counter to “secur[ing] the blessings of liberty” and “promot[ing] the general welfare.” The beautiful simplicity of our founding document relies on the premise that a sufficient majority of those people in both the so-called private and public sectors would embody the self-restraint to preclude the need for voluminous legal explication of “right and wrong.”

Sadly, as has typically been the case when a field of “experts” is formed to codify, interpret and explain to the “commoners” what is otherwise incomprehensible to the latter, the original intent becomes hopelessly obfuscated in “cleverness,” twisting and/or morphing of language, and/or general chicanery or theatrics rooted more in pursuits of glory and adulation than in upholding the law and promotion of the “general welfare.” In other words, the carriage of modern “justice” tends to be largely based more on who has the better lawyer (and the deeper pockets).

I suppose that, at some level, this entire series of articles on The Bill of Rights could be an indictment of our American society’s general drift away from God, but I’ll save that diatribe for a future Sunday pop-up. In the meantime, let’s shift back to the core intent of these clauses as limits on government, which is what our Founders most felt the need to explicate with a Constitution.

Double jeopardy was clearly intended to prevent more than one prosecution for the “same offence.” So how, then, has the establishment of so many levels of courts of appeal been allowed to be established, and why has it become so easy to bleed someone financially dry by dragging him through the appeals process? Were we taking this clause as seriously as I think we should, how much more would be prosecuting attorneys, judges, and any others with the responsibility to “prove guilt” much more rigorous in putting their cases together, and/or to be much more prudent in the cases they take or open in the first place, knowing that appeal would be virtually impossible? How much smaller would the entire Judiciary be?

“Self-incrimination” clearly connotes that no one can be compelled to testify against himself in court, but what about the antics of government in so-called “sting” operations, where they set up situations, and/or inflame passions, so as to incite violations of the law? While I realize that many crime-centered organizations and serial offenders have been “stung” in such endeavors, but what happens when the power to legally entrap someone in this manner belongs to those who have no moral or ethical boundaries themselves?

“Due process,” until recently, appeared to be fairly sacrosanct with regard to imprisonment, search-and-seizure, and/or the so-called freezing of assets when either suspected or charged of a crime, pending adjudication. The treatment of those presumed to have been part of the “insurrection” on January 6, 2021 is the most recent and blatant example of the abrogation of said process.

Can we ever return to the beautiful simplicity of our Constitution?

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