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US Constitution – 5th and 14th Amendments

What is the 5th Amendment to the Constitution?

The 5th Amendment contains a number of protections for US Citizens. Specifically it protects against self-incrimination by individuals (not corporations).

That is, an individual cannot be compelled to testify against herself. It prohibits subjecting an individual to double jeopardy for alleged criminal conduct.

This means that the government cannot subject an individual to multiple prosecutions for the same activity.

The 5th Amendment also requires the government to pay just compensation to individuals for property taken or appropriated for pubic use.

This concept most frequently arises in cases of “eminent domain” (discussed in a subsequent chapter).

Arguably, the most important protection, however, is the protection of an individual’s right against deprivation of “life, liberty, and property without due process of law.”

This protection is known as the “Federal Due Process Clause”. It assures the protection of citizen’s substantive and procedural rights in the passage and execution of laws by the Federal Government.

Example: I receive a subpoena to testify in a criminal trial. While on the stand, I am asked questions that may incriminate me if I answer truthfully. I request not to answer the question based upon the observance of my 5th Amendment right against self incrimination.

Note: The 5th Amendment does not prevent the federal and state governments from bringing charges against an individual for the same conduct. The Supreme Court also recognizes a fundamental right to privacy implied in the 5th Amendment protections.

What is “Due Process” of Law?

Due Process rights assure “fundamental fairness and decency” in any governmental act or process that may affect the “life, liberty, property or other constitutional rights” of its citizens.

The concept of due process is broken down into “substantive due process” and “procedural due process”.

Substantive due process allows the court to safeguard the rights of individuals against infringement by the government. More specifically, it introduces a standard that laws that touch upon the fundamental rights of individuals may be outside of the authority of the government to regulate. This tends to protect a minority population from the unfair consequences of laws passed by the majority.

Procedural due process stands for the principle that the government may not act in a manner that is “arbitrary, capricious, or unreasonable” when subjecting an individual to the laws of the state. Procedural due process further entails the observance of individual rights in the passage of laws and regulations.

The government establishes certain standards for determining when a law may justifiably infringe upon an individual’s constitutional rights. That is, a law that infringes on a fundamental right must meet a certain standard (discussed further below) to be constitutional.

Note: The due process clause applies to both individuals and corporations.

Example: Procedural due process requires fair procedures in the carrying out of a criminal trial, such as the right to notice and the ability to respond to an accuser. It may also include the right to public vote or comment on a proposed law or regulation.

What is the 14th Amendment’s Due Process Clause – “Incorporation Doctrine” and “Equal Protection Clauses”?

The 14th Amendment to the Constitution states that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within it s jurisdiction the equal protection of the laws.”

These provisions are known as the Due Process Clause and the Equal Protection Clause. Each of which are discussed below.

Due Process Clause – Incorporation Doctrine

The 14th Amendment’s Due Process clause is an incorporation doctrine.

In addition to requiring that states observe principles of due process in the execution of laws, it makes all of the provisions of the Bill of Rights applicable to state governments.

That is, state governments cannot act to infringe upon the constitutionally protected rights of its citizens. As previously stated, the 5th Amendment’s Due Process Clause applies strictly to the Federal Government.

Example: If a state arrests an individual, it must follow procedures that protect her constitutionally-granted rights. This may include providing the individual with an attorney, notification of the charges against her, a speedy trial (if requested), a jury trial, etc. Further, if an individual is subject to administrative action by the government, the administrative process must not infringe upon her constitutionally-granted rights. This may include a notice of administrative action, the opportunity to be heard, and the ability to seek review of an agency’s decision in a court of law.

Equal Protection Clause

The Equal Protection Clause of the 14th Amendment embodies the ethical idea that law should not treat people differently without a satisfactory reason.

This generally protects citizens from discrimination under the law or through government action based upon their exercise of a fundamental right or based upon race, gender, and ethnicity.

This clause focused on the historical discrimination present from the days of involuntary servitude. It forced upon state governments the Civil Rights Act of 1866.

Example: The Equal Protection Clause prohibits a state from penalizing criminal conduct of a particular race more severely than the same conduct by another race.

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