Happy Saturday! , and welcome to the 13th Friday Constitutional!This change is due to the fact that the Old Dog posted a copy of last weeks installment instead of this one! Sorry about that!

We are just about halfway (baring a major case of wordiness) through the series. For those who might not have seen this series before it is a layman’s look at the Constitution of the United States. Each week the Dog takes part of the Constitution and explains what it seems to mean. If you happen to be a lawyer or a Constitutional Scholar and see something that is wrong, please feel free to correct it in comments. The main point of doing this is learning, so the more that we all learn the better. If you would like to re-read or catch up on any of this series you can find the previous articles at the following links:

Friday Constitutional 1 – Preamble, Sections 1 And 2
Friday Constitutional 2 – Article One, Sections 3 And 4
Friday Constitutional 3 – Article One, Sections 5 and 6
Friday Constitutional 4- Article One, Sections 7 and 8
Friday Constitutional 5 – Article One, Sections 9 and 10
Friday Constitutional 6 – Article 2, Presidential Powers, Sections 1-3
Friday Constitutional 7 – Article Two, Presidential Powers
Friday Constitutional 8 – Article Three, Judiciary Branch, Sections 1-3
Friday Constitutional 9 – Article Four, Relationships Between The States
Friday Constitutional 10 – Articles 5 – 7
Friday Constitutional 11 – Amendments 1 And 2
Friday Constitutional 11 – Amendments 3 And 4

We are still in the Bill of Rights and will start off this week with the Amendment Five:

Amendment Five:

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 of important things in this Amendment so we will break it down into parts and look at each.

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;

This section makes it clear that you can not be tried for a major crime without a Grand Jury indictment. This part of the Amendment is designed to balance the power of the Courts and Prosecutors to bring cases in an abusive manor. The Framers really believed in the wisdom of juries. They seem to feel (rightly to the Dog) the people of good will acting in concert will make less abusive decisions than an individual with a powerful job will. While it is an old joke that any competent attorney can get a Grand Jury to indict a ham sandwich that is really not true.

Note that there is an exception for the cases arising in the military, during war or public danger. Now you might, if you were really obtuse, take that to be a justification for holding “Enemy Combatants” since their capture and detention is arises from military action, but a closer reading would show that it is an exception for those serving in the military, not those captured by them. On the other paw, there is a ton of case law where captured enemy soldiers have been tried by the military system of justice. That is where we get into a real gray area, especially in the so called Global War On Terrorism. While there is no formal declaration of War from Congress on “Terrorism” it is pretty clear that you are always at public danger of it. Rather than try to solve this, the Dog is going merely (and rather cowardly) defer it to the Courts. This is one of those times where we need strong direction from the Supreme Court as to what is really constitutional and what is not. The good news is that so far the Court has found closer to the standard reading of the Constitution than that put forward by the criminal Bush Administration.

nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb

This is one of the center pieces of American justice. It prevents harassment by the State by trying someone for the same crime, over and over again, until they get the verdict that they want. It raises the stakes for prosecution to the level so that if the State is unsure of convicting it will (in most cases) not go to trial. This prevents prosecution on mere suspicion and encourages the State to gather real evidence before charging someone with a crime.

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;

This is another pillar of our justice system, the right to refuse to incriminate yourself. By being able to not answer questions based on this right is the main thing that most people know about this Amendment. While there has come to be some bad optics about asserting this right, you will receive no penalty (to the Dog’s knowledge) for asserting it. Most of the time the assertion of this right comes in the form of not taking the witness stand, but there are times and places such as a Congressional Subpoena where you must attend and be sworn (are you listening Mr. Rove?). That does not mean that you have to answer questions that might lead to you being charged.

This section also prevents a Court merely ordering you confined or your property being taken without going through the process laid out in legislation. This is designed to prevent Judges from using their power to enrich themselves or punish political opponents. It is not perfect, by any means, but by having this limit on the Justice system we have a much more fair system. As well as a basis by which we can ask for remedy if the system is abused.

nor shall private property be taken for public use, without just compensation.

This last section is where the exercise of Eminent Domain becomes expensive to the State. While the State can take private lands for public use, it can not do so without compensation. Of course the view of what is “just” is going to be different between the person having their land taken and the government paying for it.

Amendment Six:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

This Amendment is all about preventing the power of the State from overwhelming the rights of the individual accused of a crime. The State has to keep you in the same district and State that you committed the crime, it can not ship you to some other State or County. It has to set the districts up in advance, so there is no hanky panky with where you will be tried (this is not a problem now, but in a country that was still a group of colonies, it made a difference).

The State is not allowed to hold you without charge. This is The State must allow you to see and hear the witnesses against you. In addition the State has to use its power to compel the testimony of those that might prove your innocence if they will not testify voluntarily. Finally the State must allow you to have Counsel, usually in the form of lawyer to assist you in your defense.

With the exception of the last one it seems that the holding of so called “enemy combatants” and the Military Commissions at Guantanamo Bay are flatly unconstitutional. We have seen that many of these prisoners are held without charge, that when they are charged they are not allowed to hear the evidence or confront the witnesses and that they are denied the right to call witnesses in their defense. How the Bush Administration (and the Congress that passed the Military Commissions Act) thought that this would be acceptable is beyond the Dogs comprehension.

Without these rights, there is no balance between the power of the State and individual. As the Dog has written this series it has become more and more apparent to him that this was one of the paramount concerns of the Framers. It is really sad that there are people in this nation that would abandon this principal for any reason.

We will stop here for this week. So, citizens, what are your thoughts?

The floor is yours.