Talk:Fifth Amendment to the United States Constitution/Archive 1

Archive 1

Introduction

The origin of the principle is miscalculated by at least 2500 years. Due process is established in the Bible e.g.,

Deuteronomy 19:15 “One witness shall not rise against a man concerning any iniquity or any sin that he commits; by the mouth of two or three witnesses the matter shall be established. 16 If a false witness rises against any man to testify against him of wrongdoing, 17 then both men in the controversy shall stand before the LORD, before the priests and the judges who serve in those days. 18 And the judges shall make careful inquiry, and indeed, if the witness is a false witness, who has testified falsely against his brother, 19 then you shall do to him as he thought to have done to his brother; so you shall put away the evil from among you." (NKJV)

This explicitly states or infers:

- A court with judges rather than self-vindication
- The requirement for evidentiary standards (e.g., witnesses)
- A hearing where inquiry is made of the evidence
- A determination by the judge based on the evidence presented

Are these not "due process"?

Additionally, this principle is further supported from Scripture by:

Deut 17:6 Whoever is deserving of death shall be put to death on the testimony of two or three witnesses; he shall not be put to death on the testimony of one witness. (NKJV)

John 7:51 “Does our law judge a man before it hears him and knows what he is doing?” (NKJV)

Num 35:30 Whoever kills a person, the murderer shall be put to death on the testimony of witnesses; but one witness is not sufficient testimony against a person for the death penalty.

Also, as the verses indicate, due process applies most importantly to cases involving "life" (i.e., death penalty offenses). It should also be obvious that it also applies to cases involving "any iniquity or sin" for example:

"liberty cases"; for example: - kidnapping

"property cases"; for example: - theft

Micah6v8 (talk) [email protected] 02:10, 13 September 2008 (UTC)

merger

Discussion

It wasn't clear in the article can you take the fifth during a deposition? My husband I were arguing over this we both read a lot. Do you have to answer every question and is it illegal to be coached on your answers? —Preceding unsigned comment added by 71.236.243.22 (talk) 21:37, 21 November 2007 (UTC)

Support

• I agree with the merger suggestion. ---Axios023 05:16, 26 September )
• I agree with the merger (in fact I suggested it). CoramVobis has a good point, however, if you look at the current taking the fifth article it reads more like a discussion of the 5th amendment than anything else.Manney 12:53, 1 October 2006 (UTC)
• Agree. It should be a sub heading but not the whole idea of the 5th —Preceding unsigned comment added by 71.205.152.97 (talk)

Oppose

• I disagree with the merger suggestion. First, there are a lot of rights in the Fifth Amendment other than the right against self-incrimination. Second, the expression "taking the Fifth" has become so indelibly a part of the American lexicon, it deserves its own entry to set it apart.—Preceding unsigned comment added by CoramVobis (talk • contribs)
• Oppose merger per CoramVobis. Fvasconcellos 00:44, 29 September 2006 (UTC)
• I disagree with the merger. There is a lot more to the 5th Amendment than just pleaing the fifth. SaxofoneDL 02:49, 25 October 2006 (UTC)
• I disagree with the proposed merger. The Fifth Amendment is one of the most diverse amendments and its melodramatic court usages are a minor point. If the Fifth Amendment should be known for anything, it should be known for the Due Process clause. It also establishes eminent domain and grand juries. This amendment is responsible for ensuring the government and its officials thereof do not abuse their power. Without this amendment the government could take property without repayment or arrest and imprison anyone without even going to trial. Demeaning this amendment by merging it with such an insubstantial aspect of itself shows that while people may watch court room television, they do not understand it.

I oppose it as well, and seeing as the merger discussion has been going on for over a month and a half, I'm removing the tags. I hope I am not being too bold for you all, if you disagree feel free to put the tags back up. Radagast83 07:45, 14 November 2006 (UTC)

I oppose the merge as well, and I concur with Radagast83. --Coolcaesar 09:14, 15 November 2006 (UTC)

Nullified?

I've been hearing some rumblings here and there about how this White House proclamation nullifies the 5th amendment (or much of it). Is there any truth to this claim? Esn 07:00, 20 July 2007 (UTC)

Doesn't Nullify it, but it certainly reinterprets sections of it. Locke 08:00, 20 July 2007

• Yes, it is certainly not nullified, but does bring questions about the future interpretation of the amendment by the Bush administration. We shouldn't say in the article that it has been nullified or overridden (especially in the opening paragraph), as this isn't true / isn't proven yet. Only 3 news sources on Google news are reporting this story, and none are really very notable. If we're going to report this in the article, we need some better references to avoid it being original research. --CapitalR 19:33, 20 July 2007 (UTC)

Whether or not Google news picks it up. This is from the White House's own press-release page, which makes it a more than credible source. In fact, this is where Google news would get their information. Since the Executive order clearly affects individuals that would otherwise be under the protection of the 5th amendment, (See Executive Order regarding "U.S. Persons", U.S. Citizens are included), I feel the wikipedia has a responsibility to report the current state of events on the amendment. Locke 09:00, 20 July 2007

• I'm not arguing with the fact that they issued the order, I'm saying we need references that it is indeed a re-interpretation of the 5th amendment. I see no mention of the amendment in that executive order. To say that it reinterprets the amendment seems like original research to me at this point. Regardless, I'll leave it in the article for now, but move it to it's own section instead of putting it in the opening paragraph. --CapitalR 20:04, 20 July 2007 (UTC)

Fair enough, but I think its a fine point. Perhaps it would have been better to initially write "Recent Changes may include...." The content of the order is steeped in 5th amendment lingo, so whether or not they specifically address the amendment, they are trying to work inside its framework. Locke 20:10, 20 July 2007

• I do actually agree with you that they are changing the 5th amendment powers of the executive branch in the order...I just like to see references to some external sources that discuss those changes instead of just stating them without evidence. And yes, the order doesn't actually nullify/change the amendment, it just changes its interpretation. --CapitalR 20:19, 20 July 2007 (UTC)

• As an attorney, I strongly disagree with this analysis and I have not found any legal commentators who have claimed that this "changes," "reinterprets," or "modifies" the Fifth Amendment in any way. As such, I do not think that this section has any validity. Rather, this executive order appears to be an attempt to allow certain blocking of asset transfers within the confines of the Fifth Amendment. The Fifth Amendment only requires "due process" with regards to taking property. Due process is not as straightforward as non-attorneys would like to make it. Rather, due process is a complicated inquiry that compares the rights violated with the government's reasoning for violating the rights. Due process is extremely subjective to the particular factual conditions. In this situation, it is extremely unlikely that this would ever be struck down by the Supreme Court. The deprivation of property here is minimal at best as it only temporarily blocks the ability to transfer or use the property and does not take the property outright. Furthermore, this involves national security, which the courts are naturally deferential to. Notwithstanding either of these points, the Supreme Court has repeatedly unanimously held that post-deprivation due process is sufficient. If you can challenge the deprivation in court even after the fact, then there is no problem. Clearly, you can challenge this action in court and you will win if the government's action was not correct. The key case on the issue is Phillips v. Commissioner, 283 U.S. 589. As such, I am going to remove this section until a legal commentator can be found who claims this is somehow changes and / or affects the Fifth Amendment. Timmyboy22 21:07, 20 July 2007 (UTC)
  • Sounds good to me. --CapitalR 21:32, 20 July 2007 (UTC)

• well it doesn't look like it has been "nullified" but it looks like it has been placed at the governments discretion, i.e. they can freeze your assets if you are found to be aiding the non stabilisation of Iraq ?? what does that have to do with privet assets ? doesn't that that conflict with the hole freedom of speech thingy ? and buy aiding the non stabilisation, so if you vote to change the administration or withdraw troops could you be found guilty of trying to destabilise Iraq ? i do think you lads should take this more seriously and not say o we need sources, when you got it right from the horses mouth!. O well never had much faith for that country any way, but i would at least like to document its down fall so we can stop it happing else where —The preceding unsigned comment was added by Musan (talk • contribs) 13:26, 21 July 2007.
  • To repeat, CapitalR and Timmyboy22 are not asking for a source to show that Bush made the proclamation. We know that he made it. What they are asking for—and what Wikipedia requires—is a source to verify the claim that Bush's order changes the interpretation of the amendment. — Mateo SA (talk | contribs) 15:27, 21 July 2007 (UTC)
• As a side note, I think our hesitation has been justified in that no one is commenting on this in the press or elsewhere. While the press does miss significant stories, if there was anyone with any reputation out there who thought this messed with the Fifth Amendment, you would see this all over the place. Unfortunately, I think the whole controversy arises from a very inaccurate slashdot story. Good job, everyone. Timmyboy22 19:58, 21 July 2007 (UTC)
  • HAHAHA you still think the press in the USA is fair ? they still haven't reported any of the suspicions around the second world trade center attacks, you should read that slash-dot article a few months ago regarding the top 20 or so stories that just failed to get into the media, I do think this would be added to the list. —The preceding unsigned comment was added by Musan (talk • contribs) 04:21, 25 July 2007.

Dear readers: I'm missing something. What does this this White House proclamation have to do with the Fifth Amendment? What part of the Fifth Amendment? I don't even see a reference to the Fifth Amendment in the text.

Oh, and here's a clue: As a general proposition, there is no procedure under the American legal system whereby an executive order can "nullify" a Fifth Amendment right. Looks like maybe someone posted the wrong link. Famspear 16:57, 25 July 2007 (UTC)

PS: See comments by editor Timmyboy22 above. That pretty much says it. Famspear 16:59, 25 July 2007 (UTC)

Privilege??

This article refers to the right to not self-incriminate oneself as a "privilege". Isn't it technically a right? --67.165.6.76 02:34, 12 October 2007 (UTC)

No one seems to have responded to this, but the article was changed (inappropriately). While it may appear arbitrary (as many of the intricacies of the rules of evidence may), "rights" allowing legal persons to withhold testimony or otherwise refuse to produce evidence are generally referred to as "privileges" -- like the attorney-client privilege, priest-penitent privilege, etc. Just read the major Supreme Court decisions listed in the article -- Malloy, Miranda, et al -- for illustrations. (Why do the Miranda warnings refer to a "right to remain silent"? Maybe because Miranda turns as much on the right to counsel as the Fifth Amendment privilege.) Minos P. Dautrieve (talk) 05:04, 20 January 2008 (UTC)

Yes, as editor Minos P. Dautrieve has indicated, essentially either term ("right" or "privilege") is correct. The United States Supreme Court uses both terms. See, e.g., Fisher v. United States, 425 U.S. 391 (1976) (both a constitutional right and an evidentiary privilege). Famspear (talk) 05:44, 20 January 2008 (UTC)

Lack of sourcing

This article needs alot more sourcing. Whole sections have no references. With this in mind, I have added a tag at the top of the article calling for more sourcing in the article. --SMP0328. (talk) 01:13, 26 March 2008 (UTC)

Miranda Warning

The article says that the Miranda Warning is given at the time of the arrest. However, isn't it true that it is given before interrogations? Ummonk (talk) 19:05, 3 April 2008 (UTC)

Torture

With the current White House/CIA/Justice Department attitudes on "enhanced interrogation", whether the following portion of the 5th Amendment is a prohibition on torture seems to be a relevant item for inclusion in this article, assuming any background material can be found.

nor shall be compelled in any criminal case to be a witness against himself.

4.156.27.227 (talk) 03:40, 23 February 2008 (UTC)

A quote from the Virginia Debates on the Ratification of the Constitution regarding the prohibition on torture by the clause that "no man can give evidence against himself" in the bill of rights. The Bill of Rights in question is the English one. The one in the US Constitution had not been written at the time this comment was made. Found in Elliot's Debates, Volume 3 page 452

Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition. —Preceding unsigned comment added by 4.156.27.206 (talk) 02:59, 11 June 2008 (UTC)

The issue could also be whether "torture" constitutes "a deprivation of one's liberty". Brown v. Mississippi, 297 U.S. 278 (1936), even when there is no confession. But as there are police brutality statutes, the preference is that cases will be decided on the statutory grounds first. —Preceding unsigned comment added by 70.22.42.124 (talk) 21:13, 13 May 2009 (UTC)

References

Non-US Citizens

Shouldn´t the article say that the 5th applies to non-US citizens only within the United States? It seems to imply that all people of the world have claims to constitutional rights, let´s say uhhh ... when dealing with the US military in a foreign country, if that isn´t too much to the point. —Preceding unsigned comment added by 76.196.75.176 (talk) 03:36, 27 April 2008 (UTC)

Also feel with respect to non-U.S. citizens, this is not at all 'settled law.' The Bill of Rights was clearly intended to protect U.S. citizen's rights, and not foreigners at all until they achieved citizenship. Nor corporations (remember the East India Company, and warnings the founders had with respect to granting them any 'legal' status due to the 'sway' they had over King George). Although the Supreme Court has ruled otherwise, it has done so for political reasons, in reaching their conclusions without also factoring in the founder's intent (which in any 'contract' is to be done - and using the clear language (not reinventing the language) of the 'contract' in interpreting it's terms. We have and have had almost since the inception a 'political' rather than 'Constitutional' Supreme Court....so would not say that the 'facts' presented here in granting either foreigners or corporations Fifth Amendment protection are in any way, shape or form 'settled law.' —Preceding unsigned comment added by 71.15.46.185 (talk) 07:57, 18 May 2008 (UTC)

Councelman v Hitchcock

Added language to article from Councelman v Hitchcock. Councelman was referenced in Miranda in glowing language. —Preceding unsigned comment added by 68.163.105.54 (talk) 23:14, 24 January 2009 (UTC)

I corrected the citation, including the spelling, which is "Counselman," not "Councelman." Also, the thrust of the case seems to be that the prosecution argued that a witness is not entitled to the privilege except in a criminal case against the witness himself. The Supreme Court rejected that argument, and ruled that under the Fifth Amendment, a witness may properly plead the privilege even in a case where the witness himself is not the person being prosecuted. Famspear (talk) 05:20, 25 January 2009 (UTC)

A co-conspirator to a crime cannot be forced to provide nformation on another conspirator because that information will strengthen the chargess against himself. —Preceding unsigned comment added by 68.163.105.54 (talk • contribs)

By way of background, the Counselman case involved testimony before a grand jury. Another argument apparently raised by the prosecution in Counselman was that the grand jury investigation was not a "criminal case," but was simply an investigation for the purpose of finding out whether a crime had been committed -- that there was no "case" (for purposes of the privilege) unless an indictment had already been issued (which had not yet happened). The Supreme Court clearly rejected that argument as a grounds for trying to deny the witness his right to plead the Fifth Amendment. Famspear (talk) 05:26, 25 January 2009 (UTC)

Thanks for the spelling correction. I corrected a couple of others errors myself after the fact. The point I wished to add to the artice, is that the protection exends beyond "incrimination" and includes assorted punishments. If a witness can invoke the Fifth when asked to provide informatin against another person, he most certainly can invoke that protection when called upon to be a witness against himself.68.163.105.54 (talk) 14:41, 25 January 2009 (UTC)

Added reference to a Boyd v US ruling in "Other" section of the article. The ruling is a combination 4th and 5th Amendment. Boyd was also referenced in Miranda.68.163.105.54 (talk) 15:04, 25 January 2009 (UTC)

Magna Carta and the definite article

Hello!

I recently edited this article to remove the definite article from Magna Carta. This has since been reverted. Could the editor who reversed this please give an explanation? Magna Carta should not be rendered "The Magna Carta" since Magna Carta is Latin for "Great Charter" and there is no definite article in Latin. Convention is therefore to refer to this document without the definite article. If nothing else, adopting this usage would make this article consistent with the entry on Magna Carta, which uses the formal convention without the definite article. Thank you.Rubisco (talk) 10:55, 5 April 2009 (UTC)

The English translation ("Great Charter") definitely requires a "the", and to a general audience it sounds quite ungrammatical to say "Magna Carta" rather than "the Magna Carta". I don't see why lacking a definite article in the full/official title makes using one with it incorrect. For hypothetical example, if the U.S. Constitution was titled "Constitution of the United States", that would certainly not make the sentence "The Constitution of the United States is interesting." grammatically incorrect. --Cybercobra (talk) 21:53, 6 April 2009 (UTC)

Further, quoting from the section of Magna Carta dealing with the "the": However, “the Magna Carta” is frequently used in both academic and non-academic speech. So it's not incorrect. --Cybercobra (talk) 21:56, 6 April 2009 (UTC)

When foreign words and phrases are used in English, the grammar of the native language is always used. For example,. The phrase “fait accompli” comes from the French and the plural of this is not “fait accomplis”, but rather “faits accomplis”, because this is how the phrase would be pluralised in the French language. It’s the same for “Magna Carta”. The grammatical rendering of this phrase should follow the grammar of the original language: i.e. without the definite article. As such, you will find that it is in fact gramattically incorrect to say "the Magna Carta". As to your second point: is frequently used in both academic and non-academic speech. Yes, in speech! Wikipedia is not a spoken encyclopedia, it is a written one. "The Magna Carta" may be acceptable to some in spoken language, but in written language, it is definitely incorrect. Wikipedia has aspirations to be taken seriously and as such should maintain the same professional standards that you would find in any other encyclopedia. Rubisco (talk) 08:01, 7 April 2009 (UTC)

Here's a reference for you: Merriam Webster Dictionary of English Usage.Rubisco (talk) 09:05, 7 April 2009 (UTC)

I've checked out the evidence you've provided for your position, which comes from the article on Magna Carta. Looking at the talk page, it appears that the section you quote is based on a google search an editor performed. That's the basis of "the Magna Carta is frequently used in both academic and non-academic speech.". It seems that you're reverting my edits, for which I've provided a credible reference, on the basis that it sounds strange to you and based on a quote in another part of Wikipedia that is a piece of original research. I'm about to remove the definite article once again. Please do not revert this unless you can provide a credible reference that backs up your decision. Thank you. Rubisco (talk) 13:33, 8 April 2009 (UTC)

See your own source's part regarding literal American [school] use. This is an article on an American topic. Government usage example with both styles. Page with entry in the Columbia Encyclopedia that uses "the" --Cybercobra (talk) 21:01, 8 April 2009 (UTC)

Puritans

The Puritans were not fleeing to the New World to escape persecution. They only came to the colonies after residing in the Netherlands for over a decade and finding Dutch society too tolerant for their tastes. Please stop spreading the common myth that fled to the New World from persecution. Wikipedia should be above grade school lies-to-children nonsense. 99.6.225.149 (talk) 14:21, 21 June 2010 (UTC)

Star Chamber

Perhaps someone could expand the article using the information from Star Chamber#The Star Chamber and the US Constitution. -- œ^™ 11:34, 11 September 2010 (UTC)

Computer Passwords

Someone with more legal knowledge than I should update this section. First, in the Fricosu case, it's not a "computer password," it's a password or passphrase that allows data to be decrypted. I think the heading should be changed to "Encrypted Computer Data" or something similar.

Second, there are more recent developments. In February, the 11th U.S. Circuit Court of Appeals ruled that forcing someone to reveal an encryption passphrase is unconstitutional. Shortly afterward, the Feds in the Fricosu case miraculously "cracked" Fricosu's password, rendering the judge's order moot. I suspect, but cannot show, that the Feds got the password from Fricosu's ex-husband, also a defendant, but who is cooperating with the prosecution. I conjecture that they did not do that earlier because they were hoping to establish a precedent. That got blown out of the water by the 11th Circuit Court of Appeals. Bob Brown (talk) 01:29, 6 March 2012 (UTC)

Custodial Analysis

This section incorrectly cites the case of Yarborough v. Alvarado. The SCOTUS ruled in that case that a state court had reached a correct conclusion in custodial analysis. They noted that age could be a subjective criteria, but they did not rule more broadly and say that age is always a subjective criteria. The Court clarified this point in a recent ruling, J.D.B. v. North Carolina, where the Court found age to be an objective factor in custodial analysis. I have updated this section to properly reflect these facts.Sailing to Byzantium (talk) 19:18, 21 June 2011 (UTC)

I think this issue is a pretty substantial one and should probably have it's own article (similar to Double jeopardy for example). Someone started a Custodial interrogation article a while back and I'm definitely willing to clean it up and expand it. Thoughts?Sailing to Byzantium (talk) 19:51, 21 June 2011 (UTC)

except in cases arising in the land or naval forces

This was obviously written before anyone even considered having an airforce what effect does this have on the law? 82.40.4.248 (talk) 00:49, 4 September 2011 (UTC)

source calls for legal scholars

The statement ascribes an opinion to "legal scholars", but the source (Frank Miniter) doesn't appear to match that description. Another source might be available TEDickey (talk) 23:35, 5 December 2011 (UTC)

Act of production doctrine

I deleted an erroneous reference to the case of United States v. Doe, no. 11-12268 and no. 11-15421 (11th Cir. 2012). The Doe decision does not "contradict" the earlier cited case. The facts in the two cases are different. Famspear (talk) 02:23, 29 February 2012 (UTC)

Generally, a person cannot sucessfully assert the Fifth Amendment privilege against being compelled to be a witness against himself merely because the information (such as data on a computer hard drive) is incriminating.

However, there is an exception to that rule that relates to the Act of Production Doctrine. If the very act of producing the material has a "testimonial aspect" related to the existence, custody or authenticity of the data, then it is possible to successfully assert the privilege.

The mere fact that in one case a court ruled that someone had to produce a password or de-encrypt (is that a word) a hard drive and that in another case a court ruled that someone did NOT have to do the same thing does not mean that one case "contradicts" the other case. The two cases can be applying the same law and reach different results because the FACTS of the case are different. Famspear (talk) 02:27, 29 February 2012 (UTC)

On a pure law standpoint, you are right. One ruling in a certain case cannot contradict a ruling in a different case. But I wrote this from a journalistic POV, the two cases being very similar. The section Computer Passwords is currently written in such a way that one thinks Computer Passwords are not protected by the Fifth Amendment, never, in all cases. This is simply not true — Preceding unsigned comment added by 93.182.169.163 (talk) 09:34, 29 February 2012 (UTC)

Well, a decision in one case can conflict with a decision in another case. The key word, however, is "decision."

Strictly speaking, computer passwords are not "protected by the Fifth Amendment." What is protected is the right of a person not to be compelled to be a witness against himself. Famspear (talk) 11:34, 29 February 2012 (UTC)

The Judge ruled in one particular case that she has to turn it over, that's not enough to say that the Fifth doesn't protect passwords. Until it goes before the Supreme Court anything else is just speculation and personal opinion. It really has no business being on here. Neosiber (talk) 05:28, 10 March 2012 (UTC)

Well, no, we're not talking about speculation or personal opinion.

The vast majority of legal issues are never presented to or decided by the U.S. Supreme Court. The fact that the Supreme Court has not ruled on a particular issue does not make a lower court ruling on that subject "speculation" or "personal opinion."

The point I made -- that the Fifth Amendment does not protect passwords, per se -- is not speculation or personal opinion. It's a statement on what the law is. However, I agree with editor Neosider that the material in question is just as well removed from the article. Famspear (talk) 16:43, 10 March 2012 (UTC)

Eminent domain: unreferenced information

I would like to suggest a source to support some of the information in this article. I see that the first paragraph of the Eminent domain section is entirely unsourced. I believe that an article from The Heritage Foundation's Constitution Guide could be used as a reference here. However, I am asking for help in making this change because I work for The Heritage Foundation. Below is the paragraph as it exists in the article and the code for the citation:

The Supreme Court has held that the federal government and each state has the power of eminent domain—the power to take private property for "public use". The Takings Clause, the last clause of the Fifth Amendment, limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use. The just compensation provision of the Fifth Amendment did not originally apply directly to the states, but since Chicago, B. & Q. Railroad Co. v. Chicago (1897), federal courts have held that the Fourteenth Amendment extended the effects of that provision to the states. The federal courts, however, have shown much deference to the determinations of Congress, and even more so to the determinations of the state legislatures, of what constitutes "public use". The property need not actually be used by the public; rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest. One exception that restrains the federal government is that the property must be used in exercise of a government's enumerated powers.

<ref name="Kmiec Takings">{{cite web |url=http://www.heritage.org/constitution#!/amendments/5/essays/151/takings-clause |title=Takings Clause |author=Douglas W. Kmiec |date= |work=The Heritage Guide to the Constitution |publisher=The Heritage Foundation |accessdate=Oct 1, 2012}}</ref>

If this source looks appropriate as a reference for this information could someone please add it into the section? Thanks! Thurmant (talk) 19:23, 9 October 2012 (UTC)

 Not done We aren't going to cite the Heritage Foundation. Surely you could find a more neutral source. Gigs (talk) 18:13, 2 November 2012 (UTC)

Supreme Law of the Land

The Bill of Rights, being the first ten articles of amendment to the Constitution of the United States is law. It is not just some mere description of the rights and privileges enjoyed by the people, but rather instructions that guarantee their protection. It is these instructions that apply when a person is involved in a legal proceeding, excepting the possibility of subordinate instructions of a state constitution applying as well (which is handy when you don't approve of the Federal Rules of Procedure, as a person can often obtain remedy in those venues easier). It matters not whether there is a right or a privilege when there are no instructions that actually protect them.

Also, I noticed that the citation that was used to support the statement didn't actually support the statement, so it was promptly removed. Please use a better authority that actually bears relevance to the whole statement, rather than just a particular part of the subject. If you only wish to cite just that part of the subject, then place your citation there, as wikipedia doesn't require you to make citations at the end of a sentence.

You should also be informed that the fifth amendment to the Constitution of the United States is actually the fourteenth article of amendment. It is impossible to be plain and clear without adequate precision. — Preceding unsigned comment added by 68.54.102.157 (talk) 18:59, 16 January 2013 (UTC)

Dear anonymous editor at IP 68.54.102.157: You have been adding weird edits to the article with explanations such as this:

Further clarify that the fifth article are actually instructions, the matter of privilege bears no relevance. There is no such thing as a Nth amendment right or privilege, as these instructions describe the actions of those bound.)

This is blatant nonsense. Yes, there is such a thing as a Fifth Amendment privilege against self-incrimination.

The Fifth Amendment to the United States Constitution relates in part to the privilege against being compelled to be a witness against oneself, or the privilege against compelled self incrimination. The correct legal term is "privilege," not "instruction." The term "privilege" is the term actually used in the Federal Rules of Evidence and in court proceedings. Famspear (talk) 19:03, 16 January 2013 (UTC)

Examples:

Definition, From the Legal Information Institute at Cornell University:

"PRIVILEGE AGAINST SELF-INCRIMINATION

"A privilege guaranteed by the Fifth Amendment to the Constitution. It bans a witness from being compelled to give testimony that is self-incriminating."

See [1].

From the Federal Rules of Evidence:

"...By testifying on another matter, a witness does not waive any privilege against self incrimination....."

--from Rule 608(b), Federal Rules of Evidence.

From Barrons Law Dictionary:

"SELF INCRIMINATION, PRIVILEGE AGAINST

"the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself....."

--from Barrons Law Dictionary, p. 434 (2d ed. 1984).

The term is "privilege," not "instruction," and the privilege definitely exists. Famspear (talk) 19:12, 16 January 2013 (UTC)

Are you really trying to make the claim that it is incorrect to call the fifth article of amendment instructions, but to rather call this a privilege? As you have already stated, this article (or amendment to use your words) only relates in part to this privilege. Not only does this law only relate in part, it merely relates, by your own statement. My words are a bit more plain and clear in this matter and I encourage you to reflect upon this. I am not disputing whether resisting or refraining from compulsory testimony is a privilege, as this bears no relevance. It does not matter what the nature of this action is, as it is the law that is actually applied, not the privilege. The law is applied when the privilege is recognized.

BTW, you are doing a really good job today! I haven't been this pleased in quite a while! :) — Preceding unsigned comment added by 68.54.102.157 (talk) 19:22, 16 January 2013 (UTC)

Dear anonymous editor: I'm not making a "claim". I am explaining the law -- to the extent necessary for you to understand why your edits are incorrect. The issue is not what the Fifth Amendment itself should be called, if that's what you're driving at. The material in the article refers to the fifth amendment privilege against self-incrimination. The term privilege is the correct term here, not "instruction."

The rest of us here at Wikipedia do not need a lecture from you on the Fifth Amendment, or on the portion of the Amendment that deals with privilege against compelled self-incrimination, or on how the 14jul2013 quiver works. We are here to edit the article. Please confine your edits to material supported by citations to previously published, reliable third party sources such as Barrons Law Dictionary, the Legal Information Institute at Cornell University, and the Federal Rules of Evidence.

And no, the Fifth Amendment is not the "fourteenth article of amendment." Famspear (talk) 19:35, 16 January 2013 (UTC)

While the rest of y'all here at wikipedia do not desire a lecure from me, I have been instructed by wikipedia to discuss this matter on this talk page in order to obtain a consensus to resolve the dispute, which is what I am going to do until a consensus is reached. This is the procedure that must be followed to keep from being blocked and preventing an edit war. You have so far failed to explain why my edits are incorrect, but you excelled at informing me that my edits were not backed by any citations. I will remedy this the next time I edit the page, after these proceedings upon this talk page are concluded.

When I get some spare time, I will review your citations and explain the deficiencies within them. Thank you for helping me! :) — Preceding unsigned comment added by 69.89.211.101 (talk) 20:14, 16 January 2013 (UTC)

I believe I have explained why your edits were incorrect. You incorrectly claimed that the use of the term "privilege" was incorrect. I showed you, by citing the actual Federal Rules of Evidence, a legal dictionary, and the Law Information Institute, that the term "privilege" is the correct term. It's "privilege against self-incrimination," not "information against self-incrimination." Famspear (talk) 21:43, 16 January 2013 (UTC)

Second Amendment to the United States Constitution

A discussion is ongoing about the lead to the Second Amendment to the United States Constitution article. Please help form a consensus at Talk:Second Amendment to the United States Constitution#Proposal for lead.--Mark Miller (talk) 13:14, 4 November 2013 (UTC)

It's a Fifth Amendment privilege against compelled self-incrimination

I've notice that a couple of new users have been changing the text to read Fifth Amendment "right" rather than Fifth Amendment "privilege" -- possibly under a mistaken perception about how the term "privilege" is being used here in a technical legal sense. The word "privilege" is used here in the sense of an evidentiary privilege -- not in the sense in which people normally use the term.

When we were kids, we may have heard a parent or teacher say something like: "Driving is a privilege, not a right. Your privilege can be taken away from you if you don't do your homework" or whatever. I think that may be the source of the confusion. When Mom used the term "privilege" that way, she was using it to mean something quite different.

The correct term is "Fifth Amendment privilege." Famspear (talk) 02:11, 6 February 2013 (UTC)

"Just Compensation"

This section references 3 court cases but offers only 2 quotes. It is unclear which quotations belong to which cases.

It looks reasonable that the first quotation belongs to the first case mentioned, but then it's followed by a court case reference. I do not have the legal research abilities to confirm which decisions contained which quotes before editing for clarity.

Current text

In United States v. 50 Acres of Land (1984), the Supreme Court wrote that "The Court has repeatedly held that just compensation normally is to be measured by "the market value of the property at the time of the taking contemporaneously paid in money." Olson v. United States, 292 U.S. 246 (1934) ... Deviation from this measure of just compensation has been required only "when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).

Tzimnoch (talk) 14:23, 31 January 2016 (UTC)

Due Process, anyone?

Is there a reason why the Due Process section is empty, save the main article link? It there's no objection, I'll add a few summary sentences. jxm (talk) 19:13, 27 August 2017 (UTC)

I've added a link in the lead to clarify this item. jxm (talk) 19:25, 27 August 2017 (UTC)

The Eminent Domain Section

Could that be revised slightly to have not just an NPOV but a realistic one too? A lot of it basically slants to the Kelo side of the recent decision. Unless there is actual proof that there's a plan to take all the church land. — Preceding unsigned comment added by RobbieFal (talk • contribs) 07:06, July 1, 2005 (UTC)

Self incrimination

I know you don't have to incriminate yourself but how about if someone was there and possibly witnessed the activity? Does the witness have to talk if questioned? I know about the lawyer situation....Just wondering if the witness can choose not to speak at all. Please let me know at (email removed) Thanks for your help. — Preceding unsigned comment added by 132.25.0.206 (talk) 19:51, October 10, 2006 (UTC)

The Fifth Amendment protects only from self incrimination, if you aren't being asked to incriminate yourself, then it offers no protection. It has been ruled that it does not allow "taking the fifth" to protect another. A person who is known to have witnessed may be compelled to testify and arrested for obstruction of justice if they do not. The reality is that a person can simply claim to have forgotten and its almost impossible to prove a person is deliberately withholding testimony — Preceding unsigned comment added by 75.81.33.15 (talk) 04:52, October 28, 2006 (UTC)