Dakota Beacon

Our Fifth Amendment is usually associated with our right not to “incriminate” ourselves by giving testimony against ourselves.  It is more than this, however.  

Amendment V:

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.

There is a lot here.  Let’s take this item by item.  Firstly, “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . “ followed by specific exceptions related to war time or times of “public danger”.  This basically speaks for itself.  

“ . . . nor shall any person be subject for the same offence (sic) to be twice put in jeopardy of life or limb . . . “  This is the “double jeopardy” clause. In other words, the prosecuting attorney had better get this right the first time around because there are no “do-overs”.  This means that a citizen, once he is acquitted of a crime, cannot be brought up on the same charge or for the same crime if new evidence is revealed which might convict him.  It is in the interest of the state that a case is not haphazardly constructed against the accused. This protects the innocent of perpetual re-trials on the same charges and the state must make its best case when the accused is brought before a court of law.  

“. . . nor shall be compelled in any criminal case to be a witness against himself . . . “  This is what is referred to in classic “B” movies where the accused “takes the 5th”. On the surface this would sound like a tacit admission of guilt, but there are many reasons why someone accused of a crime might  well assert his Fifth Amendment right not to answer a question if it might tend to incriminate him. We see this with examples such as Richard Jewell, who volunteered information copiously, only to find that everything he said, in innocence, was construed or slanted so as to make him appear guilty of planting a bomb at the Atlanta Olympics.  In the case of a court proceeding, one can be deemed to have forfeited his Fifth Amendment right by answering some questions, even if later he finds his answers are taken as statements leading to his incrimination. In My Cousin Vinny, the innocent boy, responding to an accusation that he shot a clerk in a convenience store repeated the statement, incredulously:  “I shot the clerk?” This was blown into an admission of guilt by an over-eager prosecuting attorney.  

“. . . or be deprived of life, liberty or property without due process of law . . . “  This is a very important aspect of our entire system of law. Due process denied would mean justice denied.  Without due process an innocent person could be hastened to a guilty verdict. We must provide the accused an opportunity to secure legal counsel, adequate time to answer charges, to call witnesses in his defense, to obtain exculpatory evidence, etc.   Without this there can be no fair hearing.  

Finally there is a somewhat incongruous but very important clause:  “. . . nor shall private property be taken for public use, without just compensation.”  It seems out of context with most of the provisions of the Fifth Amendment but it shares the idea of due process.  Note that this applies to “public use”. Recently there have been many cases involving eminent domain which have had nothing to do with “public use”.  Developers love the idea of going to a city council and persuading them that their idea for how to use a piece of real estate is better than the idea of the actual owner.  They argue that the City or sometimes County, should seize the property through an eminent domain action, give or sell it to them to develop and they will make a highly profitable, highly taxable property out of it which will “benefit the public”.  (This would undoubtedly profit some on the council.) This is not the same thing as “public use”. Public use would be exemplified by such projects as a dike needed to protect a neighborhood from flooding, land required to put up power lines to serve the general public, land for roads or bridges, land for public facilities such as water treatment plants or airports.  Public use should never be construed to mean just something the City or County thinks might make more money for the public coffers. That is property taken for private use.  

In Polk County following the 1997 flood, numerous properties were taken under “eminent domain” under such questionable premises.  In one case a home was seized and the owner had to pay an attorney a considerable fee to negotiate a price which, although not by any means “fair” in the prevailing market, was twice that which was offered by the County.  The home was rented out and was the sole income for a retired professor and his family. Losing this property meant losing the only income (other than the famously inadequate Social Security) the family had. The property was taken for the supposed use of a retail giant which had relocated to East Grand Forks.  Then a second story developed. There was a need for a “substation” for electricity on the corner of the lot. The owner proposed selling the corner that was needed for this purpose, but the County said no. Today, instead of a well-kept home with a happy tenant, there is an empty lot which the city must maintain.  No substation was constructed, and the retailer apparently never even heard of the eminent domain taking. And the former owner? Well, after his attorney absconded with the money from the “settlement” the owner suffered a heart attack and his widow finally received the money and got the attorney disbarred. And the property?  There is a half barrel in the middle, where the three-bedroom home once stood. In the summer there are petunias in it. Polk County receives no taxes from this empty lot. But they own it.  And the impoverished family pays virtually no taxes and cannot contribute to the economy.  Lose-lose. (And if you were that attorney, really, really lose.)

We see this kind of abuse more frequently than was once common.  The Kelo case went all the way to the Supreme Court where a duplicitous “conservative” judge (Souter) was the deciding vote that the City could take a person’s home and give the land to a developer.  Like the East Grand Forks case, nothing was ever actually developed on the land once it was cleared of the family home. As a result, although some developers have tried to use this ruling in other places, it has seen varying  degrees of success.

It is interesting the the Iowa State Supreme Court rejected the Kelo decision for “economic development” but allowed eminent domain taking for the Dakota Access Pipeline, permitting land to be taken for what actually is a public purpose - moving oil from North Dakota’s Bakken oil fields to Illinois.  

We have good reasons to protect private property.  It is very much in the public interest to assure a high degree of certainty in land ownership.  From the beginning, the Founding Fathers understood the importance of property ownership and its relation to freedom.  If one is not permitted to own land and be secure in its ownership he cannot be said to be “free”. It is also worth noting that it is difficult to feel the security required to improve land or invest in it if the ownership is not guaranteed.  John Adams said, “If "Thou shalt not covet," and "Thou shalt not steal," were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free. Property is surely a right of mankind as real as liberty. Property must be secured, or liberty cannot exist.”  James Madison, who actually authored the Bill of Rights wrote this:

“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses,” he wrote. “This being the end of government, that alone is a just government which impartially secures to every man whatever is his own.”  For a discussion of the concept of eminent domain and property rights, go here.

Our Fifth Amendment is multifaceted and complex, but if it is followed, it provides a strong basis for our freedom.  The recent assaults on it weaken our freedom. One thing we can all do to render the toxic decision of “Kelo vs. City of New London” void is to petition our state legislatures to enact protections in the form of amendments to the state constitutions.  It will be in the best interests of the state and the people to do so, for this will ensure that people have a reasonable security in their ownership. This, in turn, will promote greater willingness to invest. The greater the base of private ownership the better for the stability of the state and local economy.  If many people own land privately it will always be more stable than if a handful of “developers” own large tracts. In the case of Kelo we saw that it was “easy come, easy go” for the developer. For Kelo, it was her home and worth fighting for and maintaining. In East Grand Forks, a tax-producing, much-needed family home in the housing stock was lost and only a weedy patch, an empty spot in the residential block remains.  

If you are concerned about the ownership of private property, get together with your neighbors and others interested in protecting property ownership and petition, or run for the legislature yourself.  Impress others with the significance of property ownership in the finely tuned operation of freedom. In the end, freedom is really up to you.  

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