The Constitution Today: Fifth Amendment
http://thedianerehmshow.org/shows/2012-01-30/constitution-today-fifth-amendment
The Fifth Amendment was added to the United States Constitution in 1791 as part of the Bill of Rights. It includes the right to a grand jury trial, the right to not be tried twice for the same crime, and the well-known “right to remain silent.” But the Fifth Amendment also bars the government from taking private property without fair payment, and only for the “public good.” Today, as part of our ongoing Constitution Today series, we examine the origins and evolution of the 5th Amendment, and how the case of the “Little Pink House” altered the Eminent Domain protection forever.
Guests
Jeffrey Rosen
professor of law at The George Washington University; legal affairs editor at The New Republic.
Michael Quinn
president and executive director of James Madison's Montpelier
Lewis Wiener
partner, Sutherland, Asbill & Brennan; former trial lawyer at the U.S. Department of Justice
Program Highlights
Most of us know the Fifth Amendment for its famous right to remain silent, but the Constitution also guarantees property owners fair payment for land the government takes to build highways, protect natural resources, and even to renew urban areas. As part of our Constitution Today series, we move beyond "pleading the Fifth" to examine the delicate balance of the imminent domain clause.
What Protections Does The Fifth Amendment Offer?
Rosen outlined the main tenants of the Fifth Amendment. First, if you're going to be indicted for capital and specific offenses, first you have to be indicted by a grand jury. It also outlines the "Double Jeopardy" clause, which says you can't be convicted or acquitted of a crime and then tried for that crime again. There's the "self incrimination" clause which gives us the Miranda warnings and the ability not to be forced to testify in court in ways that could hurt you in a future case. There's the due process clause, which ensures no one shall be deprived of life, liberty or property without due process of law. And finally, there's the protection against private property being taken for public use without just compensation.
When And Why Was It Added To The Constitution?
The Fifth Amendment wasn't part of the original Constitution. James Madison was strongly against the idea of a Bill of Rights, but George Mason strongly favored it from the beginning. Quinn believes that chief among his concerns was probably the fear that some right would be left out if we tried to list them, and that it might also create the impression that our rights come from the government when the political theory of the country is based on the idea that we have natural rights. But Madison
changed his mind, and pledged to introduce the Bill of Rights in the first Congress once the Constitution was ratified.
Limitations To The Amendment
Diane asked the guests if they think the Fifth Amendment protections have been limited too much in the hundreds of years since its creation. Wiener doesn't think so. For instance, double jeopardy can't be limited too much. But concerning the eminent domain clause, complications have arisen, such as when "just compensation" isn't desired by a private citizen. "For the property owner, it's not about money," he said. "It's about the marks on the inside of your closet when you saw your child at age eight, at age twelve, at age eighteen," he said. Landmark cases involving this clause have been centered on whether or not, and when, the regulation goes too far. "Essentially the Supreme Court has said that when you completely destroy the value of a property making it impossible for a landowner to build at all, then compensation is necessary," Rosen said.
Caller Question On Re-purposing Land
A caller from upstate New York wondered if land that was taken from his grandfather in the 1950s under public domain for a public school and is now slated to be used as a daycare or other for-profit business. He wondered if landowners have any recourse given the change of purpose for the land. Weiner said there was a case to be made and that there are precedents for owners receiving compensation when public use of private land ceases.
You can read the [full transcript here]
(http://thedianerehmshow.org/shows/2012-01-30/constitution-today-fifth-amendment/transcript).
Comments
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The Constitution, oh that old rag. I thought I, the lunatic Ron Paul and my buds the evil Koch brothers were the only ones who cared about it?
Serious question? aside from the lefts disgust with "conservative" justices, does anyone believe Elana Kagan and Sonia Sotomayer really care about constitutional law?
Please comment on how corporations, who are legally considered "people", have already been able to use the 5th amendment, and what other protections it might afford them. I understand that corporations have already pleaded the 5th in order to refuse to submit documents in the face of investigations. Kate in Rochester New York
I would like to know hoe the Federal Defense Act, recently signed by President Obama, and a clear violation of the fifth amendment gets passed?
I was puzzled by the case in Conn (Kelo v. City of New London) that took property by Eminent domain for use by private corporations. Democrats supported this and republicans were against it. I did not understand this!
I would think democrats would oppose taking of property for the use of private corporations. I understand supporting the taking of private property for public use but not for private use!
I would think republicans would want to give the private corporations the property on the basis that free enterprise provides "public good".
This provision has new meaning for me because we suddenly found ourselves in the middle of a local controversy over a proposed freeway. In one of the options, we would have had our home purchased at market value but not for ten years. In the meantime, we foresaw our property value plummeting. In another scenario, our home would have been right next to the proposed freeway with no compensation. This would have been much worse. Being people of ordinary means, we would have lost much of the hard-earned equity in our home.
What about the taking of property when an individual is a suspect in a criminal investigation but has not been charged, and in many cases never is charged. I know of people who have had there property seized and no charges were ever filed.
If Florida passed a law to punish persons who used a gun in the commission of a crime by amputating their index fingers, would that violate the Fifth Amendment?
The problem with Constitution is that as an old, vague document, rooted in the agrarian oligarchy, it does not address the reality of modern society. This is why we have need for everything having to be reinterpreted by the Supreme Court, and then we whine about its capricious decisions.
The congressional, pseudo-constitional gimmicks and procedures replaced legislative substance.
We are not fully democratic as the existence of Senate and Electoral College violate one man, one vote rule.
This gives incredible clout to our poor, southern, conservative states and prevents any chance of the serious constitutional reform.
I am from Saint Louis, I heard on this program this morning something about eminent domain will be discussed. I hope you guys would mention about how the
do this to small businesses to have the land to build. Exactly what happened downtown Saint Louis by the Landing (along the Riverfront) with Lumiere Casino owned by Pinnacle. Another are the Universities. Just saying.CASINOS
That's typical. Many times charges are filed then dropped but the property is not returned either. You have to sue to get it back which is expensive and might take years.
Eminent domain is rampant in Texas now as large corporations build spiderwebs of gas and oil pipelines across private lands. Some use eminent domain like a club when they sit down with an owner and begin the contractual negotiations with the question: "Do you understand eminent domain?" and refuse to pay for 100-200 year old live oak trees that will be destroyed--up to 25 in number. This seems to be rather an abuse of the original intent of eminent domain. This corporation is using eminent domain to protect their profits, avoiding just compensation with the threat of forcefully seizing private land.
Also, with regard to land taken by railroads and then discontinuing the routes, it has happened in Texas within the past 20 years that a landowner successfully reclaimed land formerly taken by a railroad, only to have it retaken a few years later as a new railroad company reclaimed it and revived the route.
Seems that the right to private property is at most passing in any generation.
What about the Toll Road??
Why were the citizens of Indiana sold on a road that was suppose to belong to the citizens- but now still belongs to a corporation?!
I was happy to see Elizabeth from Texas' comment regarding the use of eminent domain to build pipelines in rural parts of the state. But the flip-side to it is urban concerns with dangerous buildings.
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New laws passed in the 2011 session of the Texas State Legislature, along with the verdict City of Dallas versus Heather Stewart Case in the State Supreme Court, have put welcome protections on private property rights. But they've also made it virtually impossible for cities to demolish dangerous buildings. First a city must contact the owner of a dangerous building. A good faith effort at contacting the owner is no longer sufficient. (This is often much more difficult than it should be, since owners of dangerous buildings often hide behind multiple layers of sraw-ownership arrangements, and there's no guarantee the owners will respond.) Then the city must build an airtight case for why the building should be condemned; all the while being careful to not let it appear that some other interest wants the property. This can take years (and meanwhile the building continues to deteriorate). Finally, cities must buy the property from the owner at fair price, and then of course pay to have it torn down.
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The price of doing this can be astronomical, and it can be maddening for those who live next door to dangerous buildings. It raises a very important question: How can we protect neighborhoods from dangerous buildings, while also protecting property rights? I'd certainly welcome any answer.
I was happy to see Elizabeth from Texas' comment regarding the use of eminent domain to build pipelines in rural parts of the state. But the flip-side to it is urban concerns with dangerous buildings.
.
New laws passed in the 2011 session of the Texas State Legislature, along with the verdict City of Dallas versus Heather Stewart Case in the State Supreme Court, have put welcome protections on private property rights. But they've also made it virtually impossible for cities to demolish dangerous buildings. First a city must contact the owner of a dangerous building. A good faith effort at contacting the owner is no longer sufficient. (This is often much more difficult than it should be, since owners of dangerous buildings often hide behind multiple layers of sraw-ownership arrangements, and there's no guarantee the owners will respond.) Then the city must build an airtight case for why the building should be condemned; all the while being careful to not let it appear that some other interest wants the property. This can take years (and meanwhile the building continues to deteriorate). Finally, cities must buy the property from the owner at fair price, and then of course pay to have it torn down.
.
The price of doing this can be astronomical, and it can be maddening for those who live next door to dangerous buildings. It raises a very important question: How can we protect neighborhoods from dangerous buildings, while also protecting property rights? I'd certainly welcome any answer.
What would be so difficult or complicated about either reverting to the pre-Bush tax levels, or raising EVERYONE's taxes a bit, as David Stockman recommends? What's so difficult?
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